Summer Reading: Will the Public Interest Test Prevail?

26 July 2013

By Helen Darbishire

Darbishire is Executive Director of Access Info Europe.

For FOI Geeks interested in the application of the public interest test who also like a good quick read over the summer, there’s a recent decision that can compete with page-turning novels.

There’s no sex, but we do learn about the intimate and very private relationship between the UK government and the European Commission. The twists and turns on the 24 pages keep you guessing right to the very last paragraphs as to whether this relationship will be revealed to the public in its full extent.

There is also a great cast of characters.

Determined Requester

The requester, Dr Chris Pounder, the lawyer with a PhD in computational quantum chemistry, a man so keen to use the UK FOI Act to get information about the data protection that he filed his first FOI request on 22 December 2004, so a few days before the UK’s FOIA came into force on 1 January 2005.

He got off to a good start: his request was processed under the new law (thank goodness for Christmas holidays!) but … it was refused. He persisted, resubmitting, asking for summaries, trying again, and after various ups and downs, we are now in July 2013 and the big question is: will our hero get the information he needs to know in what ways the UK’s Data Protection Act might be in violation of EU Directives?

Supportive Commissioner 

Next we have the character of valiant Information Commissioner. The commissioner is appointed by the British Queen to uphold both freedom of information and data protection, a position held since mid-2009 by Chris Graham, a former radio and TV journalist, who had been Secretary of the BBC and Chair of the Advertising Standards Authority.

A man who understands all about balancing interests from various angles, but ever ready to put forward compelling arguments when he believes that the balance comes down in favour of the public’s right to know, the Information Commissioner initially, in May 2012, ordered release of the two letters from the European Commission which would reveal its allegations as to how the UK Data Protection Act does not comply with EU law.

Now facing a challenge to his pro-transparency decision from the British Government, will the Information Commissioner be able to convince the judges on the Information Tribunal?

Resistant Civil Servant

Third in the trio of key lead roles in this drama is the Man from the Ministry, John Bowman, 23 years in the UK Civil Service, currently employed, the case file tells us, as a Band A Civil Servant within Ministry of Justice in the post of Head of EU and International Data Protection Policy. Since 2011, about the time of the request, he’s the man responsible for leading the British Government’s negotiations with the EU over whether or not the UK infringed EU data protection law, and at the same time representing the UK in debates in Brussels over a proposed new EU Data Protection Regulation.

Bowman is clearly a man who believes the government business is best done behind closed doors.

He argued forcefully in favour of secrecy, telling the judges on the Information Tribunal that confidentiality is essential for the EU and Member States to reach agreement over allegations of infringements of the rules, such settlements “would be difficult to reach if these free, frank and open discussions were unable to take place”, in part because it would limit the UK governments “flexibility” in the negotiations were they to be public.

Cloak of Secrecy Over Infraction Allegations

In line with this stance, the UK Government refused Chris Pounder’s request for access to the two letters of formal notice in which the European Commission alleged that the Directive 95/46/EC have not been implemented properly by the UK Government (letters dating from July 2004 and April 2006). What this meant in practice was that the British public has not been able to find out exactly what are the concerns raised by the EU about the UK Data Protection Act.

Here this case reflects a wider reality and a big concern for EU transparency activists: it’s nigh on impossible to get much substantive information about these “infraction” or “infringement” proceedings. That means that the public can’t find out in what ways their governments have adopted laws which are not fully in line with the EU rules and standards. Sometimes the negotiations with the EU drag on for years, protected under the cloak of secrecy from public scrutiny.

Panoply of Arguments 

All the possible arguments for and against secrecy are played out in the course of the case, which provides a fascinating summary of different perspectives on the appropriate levels of transparency in EU-Member State relations. The Information Commissioner stresses that how fundamental data protection is to modern life:

It  is increasingly important with the volume and complexity of data now held about individuals (financial and medical information for example) and rapid advances in technology (the internet, mobile telephones, social networks and other aspects of 21st century life which rely heavily on the processing of personal data). In short, data protection issues affect everyone, in numerous aspects of day-to-day life. If the European authorities responsible for supranational data protection consider that the UK’s transposition of the Directive into national law has – for many years – failed fully to protect its citizens’ interests in such matters, then there is very strong public interest in understanding the details of its concerns. (Para 108).

The counter argument from the Ministry Man is that “The [infraction] process is conducted through diplomatic channels,” and so confidentiality “is absolutely vital.”

The UK Government’s argument is backed up by an October 2012 letter from the EU which stresses that releasing its letters to the public would “jeopardise the climate of mutual  trust” it maintains with Member States and make reaching settlements much harder. The Information Commissioner points out that this supportive letter seems to have been solicited by the British government, rather than something which brings any substantial evidence that  relations would be damaged.

Plot Twist  

In the first exciting twist in the case, the Information Tribunal rejects the UK Government assertion that disclosure of the letter from the European Commission “would, or would be likely to, prejudice” relations with Brussels.

Following a useful summary of British law on prejudice they side with the Information Commissioner, who argues that disclosure would be more likely to “annoy” Brussels than anything else. The judges agree “we find it difficult to accept that there was a very significant and weighty chance of prejudice to [the UK’s] relations with the EC or that any prejudice in the circumstances of this case was real, actual or of substance.”

Things seem to be going well for Chris Pounder, our tenacious requester, but that was just the first exception invoked by the UK government (prejudice to international relations, Section 27.1) and he still has to overcome the governments “space to think” exception protecting the formulation of government policy (Section 35.1.a) and protection of information obtained in confidence from international organisations (27.2 and 27.3).

With respect to the formulation of government policy, the Ministry of Justice tries hard to link the issue of the infringement investigation to negotiations on the proposed new EU Data Protection rules, arguing that telling the public what had gone wrong in the past would somehow affect its ability to negotiate the future rules.

This exception flies out of the window when it is revealed that John Bowman the man heading up the negotiations on the future rules doesn’t really know much about the exact details on the state of the infringement process and cannot say which points are still to be resolved, so clearly there is not much of a link between the stalled infringement process and the future EU norm, or at least it’s not a live issue in the UK’s thinking on this.

Things are going well for our hardy requester, but one exception still stands: that the two letters from the EU were confidential is not disputed by any of our lively cast, but is there a public interest in having access?

Spoiler Alert 

[Warning: next paragraphs contain a spoiler of the plot: if you don’t want to know the outcome, stop reading now and click on this link to read the case yourself.]  

The arguments for and against transparency hang in the balance: the public’s right to know what’s going on with data protection law versus protecting an international negotiation.

The judges are thinking along the right lines, saying that “Draft Regulations are now out for consultation. The public interest in transparency and openness in knowing the outstanding issues could contribute considerably to understanding whether and how the draft Regulations deal with them and help provide meaningful public responses to the consultation on such an important area of human rights.”

And the discussions about the few outstanding infractions are “parked.”

Then, just at the end, in paragraphs 120 and 121 out of a total of 122, the judges suddenly find that their hands are tied by the law.

The compelling public interest arguments described are valid today, the decision says, when the future Data Protection regulation is a live issue, but this was not necessarily the case two years ago when the request was first made and rejected.

They conclude that the information should not be public, adding rather lamely that “If the request was made today we may have come to another conclusion but we are bound by the law to consider the public interest test as at the time of the request.”

Alternative Ending 

This is cinema verité with the illogical succession of real life happenings intervening to determine the outcome.

The reader is left with a wide open mouth hardly able to believe that the public interest test did not win the day over the confidentiality of the letters, that the requester and the Information Commissioner did not walk off into the sunset arm in arm, and suspicious that the judges have deferred too much to the Man from the Ministry and the arguments from Brussels that they really need to discuss violations of EU law far away from the public scrutiny.

It’s really hard to understand how the public interest tipped towards secrecy when the arguments in favour of transparency seem so strong.

EU rules are reputed to determine as much as 70% of national law (no one really knows the exact figure) affecting 500 million citizens and residents of the region. And yet those people – in this case the 62 million of them in the UK at least – are denied a right to know when the laws of the country they live in don’t match up to EU standards. In some cases that might be a good thing (EU lawmakers are not perfect either) and in others it could be a very bad thing (protection of fundamental rights, environmental protection, food and medicines safety, etc.) but whatever the issue and whatever one’s opinion about the EU and it’s essential to know how they are being implemented.

Requester Chris Pounder sums it up in his blog by saying “it’s a major disappointment” and announces that he will have to think about it more after taking “a well earned holiday.” I really hope that he does, and I hope that as soon as he gets back rested and refreshed from his break, he files the request again, and that this time, with the circumstances having changed, the public interest balance does tip in favour of transparency.

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