Case Law: Cobain v Information Commissioner and CPS – journalists and the right to access information – Gervase de Wilde

The Freedom of Information Act has become a powerful tool for journalists and campaigners at both local and national levels seeking to reveal the workings of the state. But those making requests can easily be stopped in their tracks by the exemptions it provides from the fundamental requirement to disclose official information. A decision in the First Tier of the Information Tribunal (Case No. EA/2011/0112 & 0113), given on February 8 2012, on an appeal against a ruling by the Information Commissioner, examined the extent of these exemptions in relation to criminal proceedings, and how they work for the press.

Facts

The information in question was requested by experienced Guardian investigative journalist Ian Cobain, who has followed the activities of far-right organisations, and BNP leader Nick Griffin in particular. It concerned Griffin’s 1998 prosecution for the offence of publishing material (in two BNP pamphlets) likely to stir up racial hatred, contrary to section 19 of the Public Order Act, 1986.

Griffin’s home and office were searched under PACE 1984, and he was interviewed under caution by two police officers. He subsequently offered extracts from recordings of the interviews for sale to the public and insisted on them being played, in full, to the jury at his trial. He sacked his barrister in order to represent himself, seemingly to give himself greater opportunity to publicise his political views. He was convicted and given a nine month sentence suspended for two years, and a fine.

In 2009 Cobain wanted to find out more about the 1998 prosecution and requested access to “all of the papers” relating to it from the Crown Prosecution Service. They refused him sight of both the papers, and a schedule of material held, citing their exemptions under under sections 30(1)(c), 30(2)(a)(ii), 40(2) and 42 of the Freedom of Information Act (‘the Act’). They asserted that the information was Mr Griffin’s sensitive personal data under the terms of the Act.

A complaint by Cobain to the Information Commissioner followed, and he upheld the CPS’s claim for the absolute exemption provided by s40(2). Cobain appealed to the Tribunal on grounds which included the argument that the ICO was wrong to find that none of the grounds set out in Schedules 2 or 3 to the Data Protection Act 1998 (‘the DPA’) were established, and that he had misconstrued Schedule 1 paragraph 3 of the Data Protection (Protection of Personal Data) Order, 2000 (‘the 2000 Order’), all of which, broadly, allow processing or disclosure of personal data in the public interest. The CPS for its part raised further FOIA exemptions, maintaining only that contained in s32 (‘Court records’) throughout the subsequent proceedings.

Judgment

The Tribunal first made the important point that much of the material held by the CPS for the purposes of prosecuting Griffin was not his personal data, and that merely assembling it for criminal proceedings did not automatically bring it within the ambit of the legislation. It then considered three exemptions to the general presumption in favour of disclosure under the Act.

FOIA s40(2)

This was the exemption upheld by the first instance Decision Notices. It is an absolute exemption relating to personal information, but its existence is conditional on a series of alternative tests which extended in these circumstances, in what the Judge called “labyrinthine” fashion, from the Act to the DPA and the 2000 Order, and its associated Schedule. The Schedule is of particular interest, as, at para 3(1) it requires that

“The disclosure of personal data—

(a) is in the substantial public interest;

(b) is in connection with—

(i) the commission by any person of any unlawful act (whether alleged or established) (or),

(ii) dishonesty, malpractice, or other seriously improper conduct by, or the unfitness or incompetence of, any person (whether alleged or established)… ,

(c) is for the special purposes as defined in section 3 of the Act; and

(d) is made with a view to the publication of those data by any person and the data controller reasonably believes that such publication would be in the public interest.”

Section 3 of the DPA states that “special purposes” include “the purposes of journalism”.

The ICO seems to have failed to extend his analysis this far as he had not seen the disclosure as fair and lawful under the DPA, given the length of time since it had initially been placed in the public domain for the purposes of the 1998 prosecution. The Judge, however, focused on Griffin’s interest in publicising his trial and conviction after the event, and his subsequent political prominence, in concluding that disclosure would be fair and lawful.

The Judge went on to find that all the other parts of the series of tests were met, including the question of whether the disclosure was for the legitimate purpose of investigative journalism, and of whether Griffin had himself chosen to make certain data within the scope of the request public. He found a further broad justification for disclosure in s3(1) of the Schedule to the 2000 Order. Disclosure was in connection with “an unlawful act”, or “seriously improper conduct” and, arguably, “unfitness” for office. It was for the purposes of journalism, and there was a substantial public interest in its disclosure, given the issues and views at stake.

FOIA s32(1)

The part of the s32 (court records) exemption, which is also an absolute exemption, which was considered was 32(1)(a):

“(1) Information held by a public authority is exempt information if it is held only by virtue of being contained in—

(a) any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter,

The Tribunal considered itself bound by the decision of the Court of Appeal in Kennedy v Information Commissioner & Anor [2011] EWCA Civ 367, where the statute was construed as meaning that the exempted information was held for the purposes of the proceedings (or “the inquiry” mentioned in 32(2)), in the sense that this exemption continued after their conclusion, until the court documents became historical records after 30 years had passed.

However, another point raised in Kennedy was whether s32 should be read down in accordance with s3 of the HRA 1998 to be compatible with ECHR Article 10, one of the questions considered being whether a refusal to disclose information under the s32 exemption was an interference with Kennedy’s Article 10(1) right “to receive and impart information and ideas without interference by public authority”.

The Tribunal here accordingly considered the ECHR jurisprudence on the right to receive information. This has recently been developed from an understanding of the right as being a relatively narrow one, which is to do with receiving information that others are willing to impart (found in Leander v Sweden (1987) EHRR 43), to a relatively broad one, which now encompasses receiving information held by an organ of the state, free of unjustified administrative obstacles (found in Tarsasag a Szabadsagjogokert v Hungary (2009) ECHR 618 and Kenedi v Hungary (2009) ECHR 786). The increased breadth of the right was noted by Lord Judge CJ in A v Independent News and Media Ltd. [2010] EWCA Civ 343.

The next question was whether the interference caused by the exemption could be justified according to the usual test for legitimately restricting Convention rights. The Tribunal held that, in order to avoid a breach of Article 10 on the grounds of proportionality, the restriction in s32(1) should be limited so that it no longer has effect once a reasonable time has passed after the exhaustion or abandonment of any appeal. The s32(1) exemption could not be relied on 12 years after Griffin’s conviction.

FOIA s30 (1)(c)

This is a qualified exemption relating to “Investigations and proceedings conducted by public authorities” and states that the information held is exempt if held for the purposes of “any criminal proceedings which the authority has power to conduct”. The Tribunal considered the competing public interests, balancing the need to protect the proceedings, and participants, against the public’s legitimate interest in criminal investigations and trials. They concluded that there was no public interest in refusing to disclose the information. Similarly there was none in withholding the BNP publication which had been the subject of the proceedings, regardless of the inflammatory material it contained, as it had already been condemned by the jury.

One of the notable exemptions under s30(1)(c) which was properly relied on was material seized by the police in the execution of PACE warrants on the basis that such warrants

“are coercive and highly intrusive weapons in the investigator`s armoury, are granted for the exclusive purpose of a criminal investigation and it would be unfair and contrary to principle to require their further disclosure”

Application of the rulings

The application of the rulings to the specific material at issue is shown in detail in a table at the conclusion of the judgment. The final form of the indictment, the actual material for which Griffin was found liable, witness statements, and the recordings of the interviews were all to be disclosed.

Comment

The principles behind the Act are said in the ICO’s guidance to be of universal application:

“The information someone can get under the Act should not be affected by who they are. You should treat all requesters equally, whether they are journalists, local residents, public authority employees, or foreign researchers;”

However, this decision indicates that the exemptions to the presumption in favour of disclosure under the Act apply differently to different kinds of requesters, in particular to journalists. The two exemptions considered by the Tribunal which are particularly significant in this regard, s40 (2) and s32(1), were both ‘absolute’ exemptions, in the sense that their application was not held to require any public interest test. But it now seems that the public interest, particularly in relation to journalism, is relevant to how they apply.

The intersection of s40(2) of the Act with the DPA and the 2000 Order does, in specific circumstances, import a public interest type test. A journalistic investigation for the purposes of publication into some kind of dishonesty, improper conduct or incompetence can make the disclosure of sensitive personal data legitimate. This modification of the absolute exemption in s40(2) will be of particular use to journalists seeking information, whether or not it relates to court proceedings, about the wrongdoing of those in public office.

The interpretation of the s32(1) exemption found here – that withholding court records may be incompatible with the Article 10 right to receive information – has wider implications. It reflects the growing significance of the Article 10 jurisprudence which focuses on the right to receive information, including to access official information (see Hugh Tomlinson QC’s Inforrm piece from last year for more on how this has developed since Leander). It seems from both the domestic and ECHR decisions that the purposes of the requester are relevant, as this right to receive information is more easily made out in relation to public interest activities such as journalism or research.

There is increasing interest, on this blog and elsewhere, in the question of ‘who is a journalist?’. Given that bloggers, and other journalists beyond what is traditionally seen as the press, have been making extensive use of the ability to make requests under the Act, it will be interesting to see how easily they are able to establish the public interest element of their work in order to bring it within the scope of the developing Article 10 right to access official information, both in relation to the Act and its exemptions, and elsewhere. The press are resistant to more formal accreditation, and many bloggers bridle at the prospect of a ‘kite mark’ system. But the chance to avoid public authorities relying on exemptions to their duties to disclose information illustrates the advantages of some kind of wide-reaching system of recognition for all types of journalist.

Gervase de Wilde is a former journalist at the Daily Telegraph and a student barrister.