Category: Freedom of Information


Does a risk of an explosion engage Article 8?

15 February 2012 by

Hardy & Maile v. United Kingdom, ECtHR, 14 February 2012 read judgment

This Strasbourg decision is the end of a long saga. Our applicants Hardy and Maile lived near proposed Liquified Natural Gas terminals at Milford Haven. In 2003 and 2004, an oil refiner obtained various consents to enable the LNG to be imported, and the applicants challenged them in the domestic courts. But the image, and the identity of its participants, will tell you that the LNG started to arrive. But Alison Hardy and Rodney Maile were not easily deflected, and after a long battle through the domestic courts ended up in the Strasbourg Court.

As we will see, they lost in their challenge to the grant of these consents, but not before establishing an interesting point about the reach of Article 8.

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Supreme Court rules BBC need not reveal internal Israel-Palestine coverage report

15 February 2012 by

Sugar (Deceased) (Represented by Fiona Paveley) (Appellant) v British Broadcasting Corporation (Respondent) [2012] UKSC 4 – Read judgment / press summary

The Supreme Court has ruled unanimously that an internal BBC report into its coverage of the Israeli Palestinian conflict was “information held for the purposes of journalism, art or literature” and therefore need not be released to the public under the Freedom of Information Act (FOIA).

Four of the justices were of the view that even if information is held only partly for the purposes of journalism, art or literature, it is outside the scope of the FOIA. Lord Wilson however, was of the opinion that if information is held predominantly for the purposes of journalism, art or literature, it is outside the scope of FOIA and that the Balen Report was held predominantly for those purposes. The BBC will be relieved that the “partly” view prevailed, as the “predominately” test might in practice have brought a lot of internal documents within the scope of the FOIA.

The “Balen Report” was commissioned by the BBC in 2004 by a senior broadcast journalist, Michael Balen. It was commissioned following allegations of bias in the coverage. Mr Sugar, a solicitor, applied to see the report under the Freedom of Information Act 2000. The BBC argued that the report was “information held for the purposes of journalism, art or literature” and therefore fell outside of the Act under the terms of section 7 of Schedule 1 to the Act.

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More secret trials? No thanks

31 January 2012 by

A child learns early that if you don’t have anything nice to say, don’t say it. Thankfully that principle does not apply to Government consultations and this is aptly demonstrated by a group of responses to the consultation into whether “closed material” (secret evidence) procedures should be extended to civil trials.

Of the responses that I have read, there is very little support for the proposals as they stand and, as journalist Joshua Rozenberg has pointed out, the most damning criticism has come from the very lawyers who are currently involved in “closed” proceedings.

If you are interested in the issue, the Joint Committee on Human Rights is hearing evidence on it today from two special advocates, including my co-editor Angus McCullough QC (see his post on the topic), as well as the current and former independent reviewers of terrorism legislation. The session begins at 2:20pm and can be watched live here.

As I did with the Bill of Rights Commission consultation, I asked people to send me their consultation responses. What follows is a wholly unscientific summary of the ones I received:

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R (Associated Newspapers) v Lord Justice Leveson: Challenge to Anonymity Ruling Dismissed

22 January 2012 by

Associated Newspapers Ltd, R (on the application of) v Rt Hon Lord Justice Leveson [2012] EWHC 57 – Read judgment

On Friday 20 January 2012 the Administrative Court dismissed the second application for judicial review of the Leveson Inquiry.   The Court dismissed an application by Associated Newspapers (supported by the Daily Telegraph) to quash the decision of the Chairman, Lord Justice Leveson. decision to admit evidence from journalists who wish to remain anonymous on the ground that they fear career blight if they identify themselves.  

Lord Justice Toulson commented “that the issues being investigated by the Inquiry affect the population as a whole. I would be very reluctant to place any fetter on the Chairman pursuing his terms of reference as widely and deeply as he considers necessary”.

Freedom of information – no longer the Cinderella of rights

17 November 2011 by

BUAV v Information Commissioner and Newcastle University (EA/2010/0064) – read judgment

There is no doubt that freedom of expression plays a starring role in the human rights fairy tale. While she is carried aloft on the soaring rhetoric of citizens’ rights from the newsrooms to protesters’ rallies, the right to information, her shy stepsister, is rarely allowed out. How can that be? Surely we can’t have the one without the other?

The key lies in the Strasbourg Court’s traditionally restrictive interpretation of  the relevant part of Article 10 – “the freedom to … to receive and impart information” (10(1)). Although the right to information is explicit (unlike many of the other rights the Court has conjured from the Convention), it does not entitle a citizen a right of access to government-held information about his personal position, nor does it embody an obligation on the government to impart such information to the individual (Leander v Sweden (1987) 9 EHRR 433). This approach is changing, particularly in relation to press applicants. But the culture remains hostile; as the Court says  “it is difficult to derive from the Convention a general right of access to administrative data and documents” (Loiseau v. France (dec.), no. 46809/99, ECHR 2003-XII – a self-serving statement if ever there was one, given that it is not the Convention but the Court’s own case law that has been so tight-fisted in the past.

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Climate change: No right to know effect of new EU rules

16 November 2011 by

Sinclair v Information Commissioner and Department of Energy and Climate Change EA/2011/0052 (08 November 2011) – Read ruling

The Environmental Information Regulations 2004 (“EIR”) did not require the Department of Energy and Climate Change (“DECC”) to disclose information concerning the government’s analysis of the potential cost to the UK of strengthened climate change commitments by the EU, the First-tier Tribunal (General Regulatory Chamber, Information Rights) has held.

In March 2007, the EU announced a target to reduce emissions by 20 percent on 1990 levels by 2020 and increase it to 30 percent under certain conditions. The issue of whether the EU would accept the increased target was debated during the 2009 Copenhagen Conference, but not agreed upon. It therefore remains a live issue.

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Leveson goes live

14 November 2011 by


Updated |Today marks a minor landmark for open justice. For the first time, a public inquiry is being  shown live over the internet.

The Leveson Inquiry into Culture, Practices and Ethics of the Press has taken over Court 73 in the Royal Courts of Justice, so when Counsel to the Inquiry Robert Jay QC begins his cross examination, you could even imagine you are watching a live trial – on that note, watch this space.

The Iraq (Chilcott) Inquiry was broadcast live but it was not a public inquiry under the Inquiries Act 2005, as Leveson’s is. The Inquiry’s website has been relaunched and will be hosting the live stream of hearings on this page. My only grumbles about the new website are that the live coverage should be more prominently advertised on the main page.

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Prince Charles, oysters and environmental information

6 November 2011 by

Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182)    3 November 2011. This significant decision of the First Tier Tribunal (FTT) is well described on 11 KBW’s Panopticon blog. So just a few thoughts on a case which has the hallmarks of going to appeal.

The underlying question was whether the Duchy of Cornwall had to answer Michael Bruton’s requests for information about the Duchy’s oyster farm, and in particular whether the farm had undergone environmental assessment before it commenced operation. Bruton’s concerns were that the Duchy’s oysters were non-native Pacific oysters, and he wanted to know whether the Duchy had considered whether the establishment of such a fishery affected existing oysters or had other effects upon the environment. In many regards, the case is round 2 of a battle started by Bruton in 2009 challenging the original grant of a licence by the Duchy to the oyster fisherman: see the 2009 decision by Burton J granting permission for this challenge. In the present case, the Information Commissioner said that the Duchy was not obliged to provide the information. The FTT disagreed.

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Snooping councils, phone hacking, CCTV… time to reform surveillance laws?

4 November 2011 by

JUSTICE, a law reform and human rights organisation, has today published a significant and wide-ranging critique of state surveillance powers contained in the Regulation of Investigatory Powers Act (RIPA).

The report – Freedom from Suspicion – Surveillance Reform for a Digital Ageis by Eric Metcalfe, former director of JUSTICE and recently returned to practise as a barrister. It reveals some pretty stunning statistics:  for example, in total, there have been close to three million decisions taken by public bodies under RIPA in the last decade.

The report is highly critical of the legislation, which it argues is “neither forward-looking nor human rights compliant“. Its “poor drafting has allowed councils to snoop, phone hacking to flourish, privileged conversations to be illegally recorded, and CCTV to spread.” Metcalfe recommends, unsurprisingly, “root-and-branch” reform.

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Times can use leaked Police documents in libel defence

25 October 2011 by

Commissioner of Police of the Metropolis & Anor v Times Newspapers Ltd & Anor [2011] EWHC 2705 (QB) (24 October 2011) – Read judgment.

Mr Justice Tugendhat has held that, with restrictions, The Times Newspapers Ltd (TNL)  should be allowed to use information from leaked documents in its defence to a libel claim brought by the Metropolitan Police Service and the Serious Organised Crime Agency (SOCA). However, proportionality limited the reach of this judgment to the next stage in the libel claim, after which reassessment may be necessary.

It was held that restrictions in the order made did not interfere with TNL’s right to a fair trial in the libel case nor offend its right to freedom of expression. Decisions on specific documents was dealt with in a closed judgment because of the sensitivity of the subject matter.


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More secret justice on the horizon

19 October 2011 by

The Cabinet Office has released its long awaited (by this blog at least) Justice and Security Green Paper, addressing the difficult question of to what extent the state must reveal secret information in court proceedings. A consultation has been launched on the proposals; responses can be sent via email by Friday 6 January 2012.

The review was announced shortly after the Coalition Government came to power, on the same day that Sir Peter Gibson’s Detainee Inquiry was launched. In summary, the Government has recommended that controversial Closed Material Procedures and Special Advocates are used more frequently, particularly in civil proceedings. The courts have been reluctant to take this step themselves as any expansion of secret procedures will have significant effects on open justice and the right to a fair trial.

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Ferdinand v MGN – a “Kiss n’ Tell” public interest defence succeeds – Lorna Skinner

2 October 2011 by

Ferdinand v Mgn Ltd (Rev 2) [2011] EWHC 2454 (QB) – Read judgment

In the first “misuse of private information” trial against a newspaper since Max Mosley in 2008, Mr Justice Nicol dismissed a claim brough by England and Manchester United footballer Rio Ferdinand against the “Sunday Mirror”.

The Judge found that, although the claimant’s Article 8 rights to private and family life were engaged, there was a public interest in correcting a false image promoted by the claimant.  It was also held that the article contributed to a debate as to the claimant’s fitness to be a role model in the light of his appointment as England football captain.

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Your honey with a dash of GM pollen: EU Court rules

22 September 2011 by

Case C‑442/09 Bablok et al v. Freistaat Bayern, Monsanto intervening

The result of this decision by the CJEU is summed up in a pithy summary by EU Business entitled “EU court backs angry honeymaker in GM pollen row.” The underlying question arose when food law met honey law (yes, there is one) met GMO licensing law, It was all about whether adventitious contamination of honey and pollen deriving from GMO maize renders the honey a GMO product.

Paradoxically the beekeeper sought that outcome in what we would call statutory tort proceedings. He sued the State of Bavaria who owned various experimental GM maize plots, for damaging his honey via GM pollen. Monsanto, the real object of the case, said that it didn’t matter really that its GMO pollen was in the pollen, and it didn’t cause damage for which our apiarist could sue. As we shall see, the CJEU decided it did matter – a lot.

Not all of you will know that EU legislators have dedicated a whole Directive to honey; of Council Directive 2001/110/EC. In the lyrical yet precise prose of the Eurocrat: ‘Honey is the natural sweet substance produced by Apis mellifera bees from the nectar of plants or from secretions of living parts of plants or excretions of plant‑sucking insects on the living parts of plants, which the bees collect, transform by combining with specific substances of their own, deposit, dehydrate, store and leave in honeycombs to ripen and mature.’ : Annex I. Honey consists predominantly of sugars but also contains solid particles derived from honey collection, as Annex II tells us.

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Is the Official Secrets Act about to be used to gag journalism? – Obiter J

18 September 2011 by

Updated |Nine years ago, in March 2002, Amanda “Milly” Dowler (aged 13) was on her way home from school.  She was kidnapped and murdered and her body was found in September 2002.  In June 2011, Levi Bellfield was convicted of her murder and sentenced to a “whole life” tariff.  When Milly went missing, journalists of the News of the World newspaper “hacked” into her voicemail.  The fact that this had happened came to public prominence in July 2011 when The Guardian newspaper revealed the story. 

The Metropolitan Police are now seeking an order that The Guardian journalists reveal their sources of information about the hacking.  There is a suggestion that the Official Secrets Act 1989 may have been breached.  The Guardian plans to resist this “extraordinary demand to the utmost” – see The Guardian 17th September – “Hacking: Met use Official Secrets Act to demand Guardian reveals sources.”

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Some information on local sex offence teachers must be disclosed, rules tribunal

16 September 2011 by

In Colleen Smith v IC and Devon & Cornwall Constabulary (EA/2011/0006), the requester asked for information on the number of school teachers in specified towns who had been investigated, cautioned and charged under the Sexual Offences Act 2003 between January 2005 and November 2007. The Constabulary eventually relied on the personal data at section 40(2) of the Freedom of Information Act (‘FOIA’).

The Commissioner found that, where the answer was “zero”, this was not personal data and should be disclosed; otherwise, the information could be withheld under section 40. The Tribunal has upheld this decision, albeit for different reasons.

This decision is worth noting on a number of grounds.

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