Upper Tribunal (Administrative Appeals Chamber)

Upper Tribunal (Administrative Appeals Chamber)                                                       

Appeal Number: GI/2146/2010;  Neutral Citation Number [2012] UKUT 340 (AAC)

Comprising 7 transfers by the First-tier Tribunal of appeals from

decision notices issued by the Information Commissioner (see Open Annex 1)

 

INFORMATION RIGHTS:

 

PROCEDURAL DECISION AND REASONS OF THE UPPER TRIBUNAL,

12 October 2012

 

Before

Mr Justice Walker

Upper Tribunal Judge John Angel

Ms Suzanne Cosgrave

 

 

Between

Rob Evans (Appellant)

-and-

Information Commissioner (Respondent)

Concerning correspondence with Prince Charles in 2004 and 2005

 

Additional Parties:

(1) Department for Business, Innovation and Skills

(2) Department of Health

(3) Department for Children, Schools and Families

(4) Department for Environment, Food and Rural Affairs

(5) Department for Culture, Media and Sport

(6) Northern Ireland Office

(7) Cabinet Office

 

Representation:

For Mr Evans                  Michael Fordham QC and Aidan Eardley (instructed by Ms Jan Clements)

For  the Commissioner:     Mr Timothy Pitt-Payne QC (instructed by Mr Mark Thorogood)

For  the Departments;   Jonathan Swift QC and Mr Julian Milford (instructed by the Treasury Solicitor)

 

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

The tribunal’s decision of 18 September 2012 (“the September 2012 decision”) allowed the appeals of Mr Evans. At that stage the tribunal deferred its consideration of substituted decision notices in order to enable the parties to make submissions as to the principles governing the redaction of personal data of individuals other than Prince Charles. The tribunal’s directions of 17 September 2012 (“the September 2012 directions”) provided for representations to be made in that regard. Having considered those representations, in order to proceed, in a manner which is fair to all concerned, to make such decisions on the appeals as it considers appropriate under section 58 of the Freedom of Information Act 2000 and regulation 18 of the Environmental Information Regulations, the tribunal directs:

(1)  The additional parties shall no later than 4pm on Monday 12 November 2012 lodge with the tribunal and provide to other parties:

(a)   subject to any “provisional redactions” asserted to be lawful in order to protect personal data of individuals other than Prince Charles, copies of the documents or parts of documents which the closed annex to the September 2012 decision states must be disclosed; the provisional redactions must be clearly identified so as to distinguish them from any other redactions which the tribunal may have determined should be made.

(b)  a schedule giving for each relevant document an anonymised identifier for each individual whose data has been redacted and setting out in relation to that individual the reasons for the redaction; in the case of an individual whose personal data have been redacted from more than one document, the same identifier shall be used in relation to each document;

(c)   any evidence upon which they rely in support of their case for the redactions; in this regard:

(i)    such evidence must address, among other things, whether the individual is now living, and if not the date on which the individual died;

(ii)  such evidence must, among other things, also address, as at the date of the document and any other date said by the additional parties to be relevant, the profession of the individual, the name or type of organisation for which the individual worked, the seniority of the individual within that organisation, and the extent to which the individual had at the date of the document or has on any later date sought or been the subject of public debate or media reporting or comment;

(iii)              evidence which would or might identify the individual concerned shall be provided only to the tribunal and the Commissioner.

(d)  open and, to the extent necessary, closed submissions in support of their case that the data in question constitute personal data which should be redacted under section 40 or regulation 13.

(2)  Within 28 days of compliance with paragraph (1) by the additional parties, the appellant must lodge with the tribunal and copy to other parties a schedule identifying

(a)   such of the “provisional redactions”, and assertions and evidence supplied to him in support of them, as he contests; and

(b)  proposed directions for determining such issues as may arise in that regard.

(3)  Within 14 days of compliance with paragraph (2) by the appellant, the Commissioner and the additional parties must lodge with the tribunal and copy to other parties their submissions in response as to proposed directions.

(4)  Within 14 days of compliance with paragraph (3) by the Commissioner and the additional parties, the appellant must lodge with the tribunal and copy to other parties his submissions in reply as to proposed directions.

(5)  The tribunal will thereafter give further directions.

(6)  If prior to 4pm on Thursday 18 October 2012 the tribunal receives an application by the respondent or any of the additional parties for permission to appeal as regards the September 2012 decision, then the operation of paragraphs (1) to (5) above is suspended until further order.

(7)  If paragraphs (1) to (5) above are not suspended pursuant to paragraph (6) above, but prior to 4pm on Monday 12 November 2012 the tribunal receives an application by the respondent or any of the additional parties for permission to appeal against any of the determinations made in the closed annex to the September 2012 decision or the decision in paragraph (1) above, then the operation of paragraphs (1) to (5) above is suspended until further order.

 

 

 

REASONS FOR DECISION

 

1.     In these reasons we adopt the short forms used in the decision above, in the September 2012 decision and in the September 2012 directions. The procedures that we have adopted have had the following consequences:

(1)  The September 2012 decision was our primary determination in this matter: it allowed the appeals. We reached the conclusion that under relevant legislative provisions Mr Evans will, in the circumstances of the present case, generally be entitled to disclosure of “advocacy correspondence” falling within his requests. Our essential reason was that it would generally be in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence government.

(2)  At the time of the September 2012 decision the Commissioner and the Departments had received a draft of the proposed Closed Annex to that decision. In the draft we identified the documents or parts of documents which, in the light of our conclusion in the September 2012 decision, would be disclosable. We also gave our reasons. However, we did not at that stage make any determinations as to the consequences of our conclusion. The reason for not doing so was that we had not had submissions about redaction of personal data of individuals other than Prince Charles.

(3)  The next step was accordingly for the parties to lodge submissions on redaction. The September 2012 directions contemplated that, in a new Open Annex 4 to the September 2012 decision, we would then set out our reasoning on the relevant principles.  We envisaged that in the Closed Annex we would modify our previous draft where our reasoning had the consequence that in our view redactions could lawfully be made. The September 2012 directions would thus, as contemplated in section N of the reasons accompanying the September 2012 decision, enable us to make a decision identifying information to be disclosed to Mr Evans, along with the terms of substituted decision notices.

(4)  The response of Mr Evans was to make submissions first, that no redaction should be permitted, and second, that if there were to be redactions then further work is needed in order to determine precisely what redactions may lawfully be made. For reasons explained below, we have rejected the first but accepted the second. We do not think that this ought to hold up identifying the documents and parts of documents which, subject only to any lawful redactions, are disclosable. We have accepted – and neither the Commissioner nor the Departments have made substantive submissions contesting – Mr Evans’s submission that on this basis the next stage is for that material to be disclosed, subject only to it being provisionally redacted. This will mean that for the time being Mr Evans does not see material for which the Departments, after an opportunity to consult the individuals concerned, seek redaction. However he will see the balance of the material and thus be able to make submissions on redaction in context. In this way it seems to us that our determinations identifying information to be disclosed to Mr Evans, and leading to a conclusion as to the terms of substituted decision notices, can be made in stages.

(5)  Accordingly we have today issued to the Commissioner and the Departments the Closed Annex to the September 2012 decision. Also today we have published the new Open Annex 4 to the September 2012 decision. As will be seen, rather than determining principles governing redaction, the new Open Annex 4 explains why we have decided that a staged process is needed. In the Closed Annex we set out our determinations as to the documents or parts of documents which, in the light of our conclusion in the September 2012 decision, are disclosable, subject only to determination of redactions in the next part of our staged process. This in due course will lead to determinations as to whether some or all of the provisionally redacted information should be disclosed to Mr Evans, and as to the terms of substituted decision notices.

2.     The relevant history is that in accordance with the September 2012 directions the Departments, the Commissioner, and Mr Evans lodged open submissions on relevant principles. In addition, however, Mr Evans submitted that the tribunal should either

(1)  impose a procedural bar, refusing to allow the Departments to seek redactions, even if the Act and the Regulations would permit them; or

(2)  adopt a staged procedure, under which the tribunal would defer a final decision on redactions until Mr Evans has seen provisionally redacted versions of the information that the tribunal considers should be shown to him.

3.     Section A of Mr Evans’s written submissions dealt with the proposed procedural bar. Mr Evans submitted that while a public authority may rely on a new exemption at any stage (Home Office v ICO and DEFRA v ICO & Birkett [2011] UKUT 17 (AAC), upheld on appeal at [2012] Env LR 24), the tribunal nevertheless retains its full case management powers (see first instance decision [13]; CA decision [28]). Mr Evans urged that in the extraordinary circumstances which have arisen here, the tribunal should decline to deal with this belatedly raised issue, in the exercise of its case management powers. In particular:

(1)  It has been open to the Departments to seek to rely on section 40 and regulation 13 in respect of third party names at any time since the requests were first made in 2005. No explanation has been provided (at least not to Mr Evans) as to why the issue has only been raised for the first time now, well past the eleventh hour, when it cannot have escaped the Departments’ legal advisers for this long.

(2)  The only way in which the issue could be dealt with properly would involve a staged procedure, entailing Mr Evans being put to yet further expense, and yet further delay, before he obtains definitive versions of the information to which he is entitled. Given the enormous delays already encountered in this case, and the very considerable costs of pursuing the appeal, such further delays and costs should not be countenanced. They would, in themselves, be unfair and unjust, contrary to the overriding objective.

(3)  Unlike some late-reliance cases, there is no danger here that requiring the Departments to disclose the correspondence without first considering the new issue would put them in a position where they might find themselves acting unlawfully, as disclosure of personal data by order of a court is lawful under section 35(1) of the Data Protection Act 1998.

(4)  In these circumstances, the unexplained failure of the Departments to raise this issue earlier should be viewed as such a dereliction of their duty to help the tribunal to further the overriding objective and to co-operate with the tribunal under rule 2(4) of the Upper Tribunal Rules that the tribunal can and should refuse them permission to raise this issue, or should debar them from further pursuing it. These steps could be taken either under the tribunal’s general case management powers in rule 5 or under rule 8(3)(b), which allows a respondent or interested party  to be debarred from further participation in part of the proceedings where it has failed to co-operate with the tribunal to an extent that the tribunal cannot deal with the proceedings fairly and justly.

4.     We consider that a procedural bar would be inappropriate, in particular as it would be unfair to the individuals in question. There are three reasons which both individually and taken together lead us to that conclusion.

(1)  The need to consider redaction of personal data of individuals other than Prince Charles arises under section 40 and regulation 13. It is true that the Departments did not prior to September 2012 make submissions to the tribunal on whether there should be redaction as regards individuals other than Prince Charles. They had, however, relied upon section 40 and regulation 13 in each department’s “final response” to Mr Evans’s request, without at that stage distinguishing between personal data of Prince Charles and personal data of others. The Commissioner’s decision notices upheld each department’s final response. They did not examine the position as regards personal data of others, and it was not necessary for them to do so. If we had dismissed Mr Evans’s appeals it would not have been necessary for us to do so. Having allowed the appeals, however, it seemed to us desirable that there be submissions on the question of redaction as regards individuals other than Prince Charles. We did not think it necessary to enquire why there had been no earlier reference to this question by the Departments – or indeed the Commissioner. Even if there had been earlier submissions to the tribunal by the Departments on whether there should be redaction as regards individuals other than Prince Charles, we would have directed in accordance with the overriding objective that this question should be reserved for later consideration if necessary.

(2)  We do not accept that raising the issue now, rather than earlier, will cause additional expense to Mr Evans. Section B of his written submissions identified the procedures which Mr Evans advocated as appropriate in a case where disclosure had been agreed subject to redaction as regards individuals. Procedures of this kind will involve expense once provisionally redacted documents are disclosed. That expense would not have been avoided if the issue had been raised earlier.

(3)  It is important that the tribunal should not ride roughshod over the personal interests of any individual. We do not need to decide whether a decision by us preventing the Departments from seeking to protect those interests would be a defence to any complaint under the Data Protection Act. What is important is that, in so far as the Act and the Regulations enable the personal interests of others to be protected, we should not harm those interests if the question whether they are entitled to protection can be examined without substantial unfairness to others. Examining that question in the present case will not in our view involve substantial unfairness to Mr Evans. We acknowledge that this case has required considerably longer than expected in order to arrive at the September 2012 decision, and that there may be further delay if there is an appeal. We acknowledge also that determining whether there should be redaction as regards individuals other than Prince Charles will involve a further delay in reaching a final decision. However it will not involve a delay in making available the substance of the disclosable documents. In the absence of any appeal, the procedural decision above requires that they be made available within 1 month, albeit that certain parts of certain documents will be subject to the provisional redactions.

5.     Section B of Mr Evans’s written submissions dealt with the proposed staged procedure. Mr Evans submitted that redacting names from correspondence which, in the tribunal’s view, should be disclosed in the public interest, is a highly fact-sensitive issue requiring fine-grained analysis. If the documents were disclosed with provisional redactions he would be able to judge whether the redactions interfered with his ability to understand the meaning, context or significance of the correspondence, and would be able to raise the matter with the tribunal if he formed the view that the redactions were unlawful. In that regard he envisaged that the Departments would be required to provide open evidence which (while falling short of actually identifying the third parties) would need to give an indication of the person’s role, seniority, exposure to the media and so on. He added that the Departments would also be required to make open submissions, by reference to that open evidence and the redacted documents, making a case for the preservation of the redactions.

6.     The Commissioner made no submissions on this aspect of the matter.

7.     The Departments said that they were neutral on whether the issue of redaction should be dealt with now or whether it should be dealt with at a later stage, as proposed by Mr Evans. They saw good sense in dealing with the matter now, and avoiding further delay and cost, and did not consider that dealing with the matter now would put Mr Evans to any disadvantage. On the other hand, they had no strong objection to his proposed directions.

8.     We accept that there should be a staged procedure. In our view this will enable fairness to all concerned. It will enable Mr Evans to see the context, in the form of the specific document, and in that context to decide whether he is content to accept the provisional redactions. If he is not content, then he and the other parties will be able to suggest open and closed procedures which, having regard to the provisionally redacted documents, will best enable the tribunal to examine the Departments’ contentions about them in a manner which is fair to all concerned. We do not propose at this stage to determine what those procedures should be. Nor do we propose at this stage to make any substantive ruling as to the principles governing whether there should be redaction as regards individuals other than Prince Charles. As explained in Open Annex 4 to the September 2012 decision, the only ruling we make at this stage is that principles governing redaction of personal data concerning individuals other than Prince Charles should be dealt with at a later stage.

9.     We do, however, think it desirable to return to the point made earlier that it is important that the tribunal should not ride roughshod over the personal interests of any individual. The submissions we have received thus far on relevant principles have, in the case of the Departments, dealt with personal interests of individuals in a generalised way. Those from the Commissioner and Mr Evans have drawn attention to factors which could involve closer examination of the particular circumstances of the individual. We draw attention to the fact that personal data of an individual are not necessarily confined to the name of that individual. It seems to us desirable that more active consideration should be given to a closer involvement of the individual in question in ensuring that relevant personal data are identified, and that the views of that individual, and relevant evidence which that individual can provide, are put before the tribunal.

10.  Paragraphs (6) and (7) of our decision above cater for the possibility that the Commissioner or the Departments may lodge applications seeking permission to appeal from the September 2012 decision, from the determinations in the closed annex to that decision, or from the Procedural Decision itself. In that event paragraphs (1) to (5) of the Procedural Decision will be suspended. Whether and in what terms those paragraphs should cease to be suspended may depend upon the precise nature of the applications, upon their outcome, or upon other factors. At a late stage we received representations from the Treasury Solicitor on behalf of the Departments that the same should apply in the event that there was served on the Commissioner a certificate under section 53. That section provides that certain decision notices or enforcement notices shall cease to have effect if there is a timely certificate by an accountable person stating that on reasonable grounds the accountable person has formed the opinion that, in respect of the request or requests concerned, there was no relevant failure. In our view a certificate under section 53 is entirely different in character from any appellate process, and is not something that we need to anticipate. If there is a certificate under section 53, and any party considers that the certificate necessitates some change in anything we have said or done, then it will be open to that party to make an application to us on notice to other parties.

 

 

 

                                                                                     Signed:

 

                                                                                     Paul Walker

 

                                                                                     John Angel

 

                                                                                     Suzanne Cosgrave

 

                                                                                    12 October 2012