UK Media Law Pocketbook Second Edition 30th November 2022
By Tim Crook
A practical guide on how to use the UK’s Freedom of Information Act 2000 (enacted in 2005) to obtain official information from government departments and bodies.
The operation of absolute and qualified exemptions, how to appeal rejected requests to the Office of Information Commissioner and then into the Tribunal System.
The battle against coordinated official frustration of journalistic inquiry and the implications of the Strasbourg ruling in 2016 which gave standing Article 10 right to information for journalists, academics and campaigning NGOs pursuing social watchdog and public interest investigations.
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Videocast on Media Law of Freedom of Information in a few minutes
Bullet points summarizing UK Media Law of Freedom of Information
A downloadable sound file of bullet points highlighting some key aspects of Freedom of Information law in the UK. 10.0 podcast downloadable
10.1 USING FOIA POWERS TO OBTAIN INFORMATION FROM PUBLIC AUTHORITIES
Online Links Printed Book
Page 227
ICO Public authorities under the Freedom of Information Act
https://ico.org.uk/media/1152/public_authorities_under_the_foia.pdf
Schedule 1 of the Freedom of Information Act 2000
https://www.legislation.gov.uk/ukpga/2000/36/schedule/1
Pages 228, 229 and 300
Information Commissioner’s Office ICO resources
https://ico.org.uk/
ICO guide on How to access information from a public body
https://ico.org.uk/your-data-matters/official-information/
ICO guidance on the public interest test
https://ico.org.uk/media/for-organisations/documents/1183/the_public_interest_test.pdf
How to complain online to the ICO:
https://ico.org.uk/make-a-complaint/foi-and-eir-complaints/
The Information Commissioner provides detailed briefings and guidance notes on FOI law and a growing body of jurisprudence is developing from decisions of the Information Tribunal.
https://ico.org.uk/for-organisations/guide-to-freedom-of-information/
View a full index of ICO freedom of information and environmental information guidance for organizations.
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/
How the ICO deals with complaints
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/how-we-deal-with-complaints/
Guidance about dealing with repeat requests
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/dealing-with-repeat-requests/
Guidance about key questions for public authorities.
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/key-questions-for-public-authorities-foi-act-2000/
Guidance to dealing with vexatious requests (section 14(1))
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/dealing-with-vexatious-requests-section-14/
Guidance to section 16 – advice and assistance and official information held in non-corporate communications channels.
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/section-16-advice-and-assistance/
Useful Online FOI Guidance Resources by Practitioners, News Publishers, and Pressure Groups
Practical guide on Freedom of Information for UK journalists written by Matt Burgess and published by Routledge in 2015 who is also founder of the FOI Directory website:
http://www.foi.directory/
Guardian articles on UK FOI.
https://www.guardian.co.uk/politics/freedomofinformation
Campaign for Freedom of Information. The CFOI played a leading role in persuading the government to introduce the FOIA in 2000 and says it has ‘successfully defended it from restrictions proposed by every government since.’ The not-for-profit organization seeks ‘to improve and defend freedom of information in support of a more vibrant and open democracy.’
https://www.cfoi.org.uk/
http://www.freedominfo.org/ ‘is a one-stop portal that describes best practices, consolidates lessons learned, explains campaign strategies and tactics, and links the efforts of freedom of information advocates around the world. It contains crucial information on freedom of information laws and how they were drafted and implemented, including how various provisions have worked in practice.
Your Right To Know (by Heather Brooke, FOI campaigner)
https://heatherbrooke.org/books/your-right-to-know/
Freedom of Information Act 2000
https://www.legislation.gov.uk/ukpga/2000/36/contents
10.2 UNDERSTANDING AND NEGOTIATING THE 23 EXEMPTIONS IN THE FOIA
Online Links Printed Book
Page 231
10.2.1. Guidance to Section 21: Information Reasonably Accessible to the Applicant by Other Means
The Information Commissioner’s guidance to section 21
https://ico.org.uk/media/for-organisations/documents/1203/information-reasonably-accessible-to-the-applicant-by-other-means-sec21.pdf
The Ministry of Justice’s guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s21.pdf
Page 232
10.2.2. Guidance on Sections 22 and 22A: Information Intended for Future Publication and Research Information
The Information Commissioner’s guidance to sections 22 and 22a
https://ico.org.uk/media/for-organisations/documents/1172/information-intended-for-future-publication-and-research-information-sections-22-and-22a-foi.pdf
The Ministry of Justice’s guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s22.pdf
10.2.3. Guidance to Section 23 – Security Bodies
The Information Commissioner’s guidance to section 23
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/section-23-security-bodies/
The Ministry of Justice’s guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s23.pdf
Page 233
10.2.4. Guidance to Section 24 – Safeguarding National Security
The Information Commissioner’s guidance to section 24
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/section-24-safeguarding-national-security/
Ministry of Justice guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s24.pdf
ICO Guidance on how sections 23 and 24 interact.
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/how-sections-23-and-24-interact/
Information Tribunal Case 2007 Norman Baker v ICO and Cabinet Office with NCCL as additional party.
https://informationrights.decisions.tribunals.gov.uk/DBFiles/Decision/i24/Baker.pdf
Page 234
10.2.5. Guidance to Section 26 – Defence
Information Commissioners’ Guidance to section 26
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/section-26-defence/
Ministry of Justice guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s26.pdf
10.2.6. Guidance to Section 27 – International Relations
Information Commissioner’s Guidance to section 27
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/section-27-international-relations/
Ministry of Justice guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s27.pdf
Campaign against Arms Trade v the Information Commissioner and Ministry of Defence EA/2007/0040 (26 August 2008)
https://informationrights.decisions.tribunals.gov.uk/DBFiles/Decision/i205/Campaign%20Against%20the%20Arms%20Trade;%20EA.2007.0040%20.pdf
Page 235
10.2.7. Guidance to Section 28 – Relations Within the UK
Information Commissioner’s Guidance to section 28
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/section-28-relations-within-the-uk/
Ministry of Justice guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s28.pdf
10.2.8. Guidance to Section 29 – The Economy
Information Commissioner’s Guidance to section 29
https://ico.org.uk/media/for-organisations/documents/2021/2619027/s29-the-economy.pdf
Ministry of Justice guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s29.pdf
Page 236
10.2.9. Guidance to Section 30 – Investigations and Proceedings
Information Commissioner’s Guidance to section 30
https://ico.org.uk/media/for-organisations/documents/1205/investigations-and-proceedings-foi-section-30.pdf
Ministry of Justice guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s30.pdf
10.2.10. Guidance to Section 31 – Law Enforcement
Information Commissioner’s Guidance to section 31
https://ico.org.uk/media/for-organisations/documents/1207/law-enforcement-foi-section-31.pdf
Ministry of Justice guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s31.pdf
Page 237
10.2.11. Guidance to Section 32 – Court, Inquiry or Arbitration Records
Information Commissioner’s Guidance to section 32
https://ico.org.uk/media/for-organisations/documents/2021/2619028/s32-court-inquiry-and-arbitration-records.pdf
Ministry of Justice guidance (2008) https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s32.pdf
10.2.12. Guidance to Section 33 – Public Audit
Information Commissioner’s Guidance to section 33
https://ico.org.uk/media/for-organisations/documents/1210/public-audit-functions-s33-foi-guidance.pdf
Ministry of Justice guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s33.pdf
10.2.13. Guidance to Section 34 – Parliamentary Privilege
Information Commissioner’s Guidance to section 34
https://ico.org.uk/media/for-organisations/documents/1161/section_34_parliamentary_privilege.pdf
Page 238
10.2.14. Guidance to Section 35 – Government Policy
Information Commissioner’s Guidance to section 35
https://ico.org.uk/media/for-organisations/documents/1200/government-policy-foi-section-35-guidance.pdf
Ministry of Justice guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s35.pdf
10.2.15. Guidance to Section 36 – Effective Conduct of Public Affairs
Information Commissioner’s Guidance to section 36
https://ico.org.uk/media/for-organisations/documents/2260075/prejudice-to-the-effective-conduct-of-public-affairs-section-36-v31.pdf
Guidance to section 36: record of the qualified person’s opinion
https://ico.org.uk/media/for-organisations/documents/1176/section_36_record_of_the_qualified_persons_opinion.doc
Ministry of Justice guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s36.pdf
Page 239
10.2.16. Guidance to Section 37 – On Communications with Her Majesty and the Awarding of Honours
Information Commissioner’s Guidance to section 37
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/communications-with-her-majesty-and-the-awarding-of-honours-section-37/
Ministry of Justice guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s37.pdf
Brown vs ICO and the Attorney General (EA/2011/0002 August 2011)
https://informationrights.decisions.tribunals.gov.uk/DBFiles/Decision/i556/20111004%20Decision%20and%20Ruling%20EA20110002.pdf
Page 240
10.2.17. Guidance to Section 38 – Health and Safety
Information Commissioner’s Guidance to section 38
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/section-38-health-and-safety/
Ministry of Justice guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s38.pdf
Greg Callus v the Information Commissioner and the Home Office EA/2013/0159, (6 May 2014)
https://informationrights.decisions.tribunals.gov.uk/DBFiles/Decision/i1273/Callus,%20Greg%20EA.2013.0159%20(06.05.14).pdf
10.2.18. Guidance to Section 39 – Environmental Information
https://ico.org.uk/media/for-organisations/documents/1043419/exemption-for-environmental-information-section-39.pdf
Ministry of Justice guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s39.pdf
Page 241
10.2.19. Guidance to Section 40 – Personal Information
Information Commissioner’s Guidance to section 40
Guidance to Section 40 – personal information
https://ico.org.uk/media/for-organisations/documents/2619056/s40-personal-information-section-40-regulation-13.pdf
Guidance to Section 40 – access to information held in complaint files
https://ico.org.uk/media/for-organisations/documents/2021/2619040/s40-access-to-information-held-in-complaint-files-final-v-31.pdf
Guidance to Section 40 – information exempt from the subject access right
https://ico.org.uk/media/for-organisations/documents/2021/2619032/s40-information-exempt-from-the-subject-access-right.pdf
Guidance to Section 40 – neither confirm nor deny in relation to personal data
https://ico.org.uk/media/for-organisations/documents/2021/2619041/s40-neither-confirm-nor-deny-in-relation-to-personal-data-section-40-5-and-regulation-13-5-final-version-21.pdf
Guidance to Section 40 – personal data of both the requestor and others
https://ico.org.uk/media/for-organisations/documents/2021/2619029/s40-personal-data-of-both-the-requester-and-others-foi-eir-final-version-21.pdf
Guidance to Section 40 – requests for personal data about public authority employees
https://ico.org.uk/media/for-organisations/documents/1187/section_40_requests_for_personal_data_about_employees.pdf
Ministry of Justice guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s40.pdf
Page 242
10.2.20. Guidance to Section 41 – Information Provided in Confidence
Information Commissioner’s Guidance to section 41
https://ico.org.uk/media/for-organisations/documents/1432163/information-provided-in-confidence-section-41.pdf
10.2.21. Guidance to Section 42 – Legal Professional Privilege
Information Commissioner’s Guidance to section 42
https://ico.org.uk/media/for-organisations/documents/1208/legal_professional_privilege_exemption_s42.pdf
Ministry of Justice guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-section42.pdf
Bellamy v the Information Commissioner and the Secretary of State for Trade and Industry (EA/2005/0023, 4 April 2006)
https://www.casemine.com/judgement/uk/5a8ff78460d03e7f57eae14e
Page 243
10.2.22. Guidance to Section 43 – Commercial Interests
Information Commissioner’s Guidance to section 43
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/section-43-commercial-interests/
Ministry of Justice guidance (2008)
https://webarchive.nationalarchives.gov.uk/ukgwa/20150730125042/http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-s43-exemptions.pdf
University of Central Lancashire (UCLAN) v IC and Professor Colquhoun EA/2009/0034, (8 December 2009)
https://informationrights.decisions.tribunals.gov.uk/DBFiles/Decision/i357/UCLAN_v_IC_&Colquhoun(EA-2009-0034)Decision_08-12-09(w).pdf
Page 244
10.2.23. Guidance to Section 44 – Prohibitions on Disclosure
Information Commissioner’s Guidance to section 44
https://ico.org.uk/media/for-organisations/documents/2021/2619033/s44-prohibitions-on-disclosure.pdf
David Barrett v the Information Commissioner and the Office for National Statistics EA/2007 /0112, 23 April 2008
https://www.casemine.com/judgement/uk/5b46f1ef2c94e0775e7ee61f
10.2.24. Guidance to Section 45 – Code of Practice, Request Handling
Information Commissioner’s Guidance to section 45
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/section-45-code-of-practice-request-handling/
10.3 SOME KEY UK FOI TEST CASES AND FREEDOM OF INFORMATION LAW FROM STRASBOURG
Online Links Printed Book
Page 247
MAGYAR HELSINKI BIZOTTSAG v. HUNGARY – 18030/11 (Judgment (Merits and Just Satisfaction): Court (Grand Chamber)) [2016] ECHR 975 (08 November 2016)
https://www.bailii.org/eu/cases/ECHR/2016/975.html
TIMES NEWSPAPERS LIMITED and Dominic KENNEDY against the United Kingdom, The European Court of Human Rights (First Section), sitting on 13 November 2018 as a Committee
https://laweuro.com/?p=4528
Section 78 UK Freedom of Information Act
https://www.legislation.gov.uk/ukpga/2000/36/section/78
Sugar v British Broadcasting Corporation & Anor [2012] UKSC 4 (15 February 2012)
https://www.bailii.org/uk/cases/UKSC/2012/4.html
Kennedy v The Charity Commission [2014] UKSC 20 (26 March 2014)
https://www.bailii.org/uk/cases/UKSC/2014/20.html
Dominic Kennedy v IC & The Charity Commission (Freedom of Information Act 2000) [2011] UKFTT EA_2008_0083 (GRC) (18 November 2011)
https://www.bailii.org/uk/cases/UKFTT/GRC/2011/[2011]_UKFTT(GRC)_EA20080083_2011-11-18.html
Moss v Information Commissioner and the Cabinet Office [2020] UKUT 242 (AAC) (30 July 2020)
https://www.bailii.org/uk/cases/UKUT/AAC/2020/242.pdf
Guidance. Information rights and data protection: appeal against the Information Commissioner
https://www.gov.uk/guidance/information-rights-appeal-against-the-commissioners-decision
Form UT13: Application for permission to appeal and notice of appeal from an information rights decision of the First-tier Tribunal (General Regulatory Chamber).
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/689172/ut13-eng.pdf
UK’s freedom of information laws are being undermined, warn journalists, Guardian 7 April 2022
https://www.theguardian.com/politics/2022/apr/07/uk-foi-transparency-laws-are-being-undermined-warn-journalists
Open Democracy Art of Darkness How the government is undermining Freedom of Information by Lucas Amin, November 2020
https://www.documentcloud.org/documents/20415987-art-of-darkness-opendemocracy
10.4 SCOTTISH FREEDOM OF INFORMATION LAW
A downloadable sound file on freedom of information law Scotland. 10.4 podcast downloadable
Online Links Printed Book
Page 249
Scottish Information Commissioner
https://www.itspublicknowledge.info/
Freedom of Information (Scotland) Act 2002
https://www.legislation.gov.uk/asp/2002/13/contents
Scottish Information Commissioner – Briefings and Guidance
https://www.itspublicknowledge.info/briefings-and-guidance
Step-by-step guidance on using your rights to get information from Scottish public bodies and when and how you can make an appeal.
https://www.itspublicknowledge.info/your-rights
Information about FOI law, public bodies’ duties under the law, and resources to support compliance.
https://www.itspublicknowledge.info/law-and-guidance
Decisions of the Scottish Information Commissioner
https://www.itspublicknowledge.info/decisions
SIC Scottish Government Intervention Progress Report 17 May 2022
https://www.itspublicknowledge.info/sites/default/files/2022-05/ScottishGovernmentIntervention_ProgressReport.pdf
10.5 EIR AND UPDATES AND STOP PRESS
Online Links Printed Book
Page 250
ICO guide ‘What are the Environmental Information Regulations?’
https://ico.org.uk/for-organisations/guide-to-the-environmental-information-regulations/what-are-the-eir/
ICO Guide to the Environmental Information Regulations for public authorities
https://ico.org.uk/for-organisations/guide-to-the-environmental-information-regulations/
ICO Guide to ‘What is environmental information?’
https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/
Mersey Tunnel Users Association (MTUA) v Information Commissioner and Halton Borough Council [EA/2009/0001, 24 June 2009]
https://informationrights.decisions.tribunals.gov.uk/DBFiles/Decision/i319/MTUA%20v%20IC%20&%20HBC%20(0001)%20Decision%2023-06-09%20(w).pdf
Errata- proofing corrections to the printed book
Page 239- line 1. The reference to Section 37 ‘ON COMMUNICATIONS WITH HER MAJESTY’ now relates to ‘His Majesty’ following the death of Queen Elizabeth II and accession of King Charles III.
Page 246- line 3. ‘Duncan Kennedy’ should be ‘Dominic Kennedy’ as stated on page 245. Apologies to Mr Kennedy.
Page 246- line 22. ‘ECtHR’ should be ‘ECHR’ as this sentence is referencing the European Convention on Human Rights.
Unsuccessful Judicial Review challenge of failure of FTT and UT Information Rights to apply ECtHR Grand Chamber ruling Magyar Helsinki v Hungary 2016
The ruling of Mr Justice Ritchie on 11th November 2022 is the end of the road for a longstanding attempt through multiple appeals to the First Tier Tribunal and Upper Tribunal (Information Rights) by Professor Tim Crook to persuade the UK domestic legal system to read down Article 10 Freedom of Expression rights against the statutory absolute exemptions in the Freedom of Information Act 2000.
This was in the context of the ECtHR Grand Chamber in Magyar Helsinki v Hungary ruling in 2016 that public watchdog journalists, academic researchers, and NGOs had a qualified standing right under Article 10 to state information.
Mr Justice Ritchie decided ‘There is no arguable error of law asserted, only an impassioned plea for the law in S.23 of the Freedom Of Information Act to be changed. Parliament changes the law, not the Courts.’
He rejected Professor Crook’s application for leave for judicial review and certified it as ‘totally without legal merit.’ This provision meant it would have been highly unlikely that further appeal attempts to the Appeal Court Civil Division and UK Supreme Court would have had any chance of success.
Professor Crook had mounted five First Tier Tribunal appeals and three Upper Tribunal applications for permission to appeal in striving to achieve recognition of his public interest/watchdog right to information withheld from him by a state information monopoly.
In every case the tribunals insisted they were determined by Act of Parliament (creatures of FOIA) and the King’s Bench Division Administrative Court was not prepared to accommodate any judicial review seeking declaration of incompatibility with Article 10 rights.
For lawyers, journalists, academics and law students interested in finding out more about the background to this case, please see Professor Crook’s statement of facts, legal grounds and remedies sought which were submitted in the application for judicial review. The full core bundle is not in the public domain because it contained some private information and documents covered by privacy/confidentiality issues. Relevant Upper Tribunal rulings and links to FTT rulings are provided below.
Please also find the three rulings by Upper Tribunal (Information Rights) Judges refusing permission to appeal against First Tier Tribunal rulings on appeals pursued by Professor Crook.
Judge Edward Jacobs Upper Tribunal ruling 20th April 2022 Crook v Met Police & ICO UA-2021-000143-GIA
Judge Rupert Jones Upper Tribunal Ruling Crook v ICO 13th September 2021 GlA 446 & 447/2021
Judge Stewart Wright Upper Tribunal Ruling 22nd July 2021 GlA/2103/2019 & GIA/753/2020
Prof Tim Crook v IC & Metropolitan Police (Dismissed) | Judgment | 3 Aug 2021 — 1 IN THE FIRST–TIER TRIBUNAL EA/2019/0014. (INFORMATION RIGHTS) In the matter of an appeal under section 57 of the Freedom of Information Act
[2021] UKFTT 2019 0014 (GRC) https://www.casemine.com/judgement/uk/610924b92c94e0239c457ee6
| Freedom of Information Act 2000 | Tim Crook v IC Additional Party Foreign and Commonwealth Office EA/2015/0224 | 28/06/2016 | Dismissed | |
| Decisions from 1 April 2019 | Prof Tim Crook v IC Additional Party EA/2019/0282 | 27/02/2020 | Dismissed | |
| Decisions from 1 April 2019 | Prof Tim Crook v IC Additional Party Home Office EA/2019/0073 | 24/07/2019 | Dismissed | |
| Decisions from 1 April 2019 | Prof Tim Crook v IC Additional Party The Commissioner of Police for The Metropolis EA/2019/0014 | 03/08/2021 | Dismissed |
Ruling by Judge Moira MacMillan First Tier Tribunal Prof Tim Crook v ICO 18 January 2021 QJ/2020/0013 & 0014
Commentary:-
Professor Crook’s multiple actions through the FOIA system were made in good faith in order to simply ask an independent judicial body to adjudicate on a request to access historical files relating to public watchdog and public interest academic history and journalism projects.
There would have been no risk to national security as this could have been done in closed session in respect of closed files. Partial release of information with redactions is now standard and an effective method of guaranteeing as much disclosure as possible in respect of people deceased long ago and events long in the past.
The information sought is held by security bodies listed as exempt in FOIA and the Special Branch of the Metropolitan Police which is not, though it does enjoy the absolute exemption shield because historically Special Branch and its successor organisation, Counter Terrorism Command, works closely with the Security Service MI5.
The FOIA system and High Court have denied him the right to have that independent judicial adjudication, despite the fact the ECtHR Grand Chamber in Magyar 2016 clearly stated he had that right and its denial amounts to a breach of Article 10 Freedom of Expression and Information rights.
His requests were in the context of the Met Police and Security Bodies, such as MI5 exercising their own information monopoly over the release of historical files to the National Archives, which currently amounts to nearly 6,000 such files at the time of writing.
As will be seen in the arguments and grounds presented to the Tribunals and High Court, some information relevant to the Goldsmiths History project has been released to the Public Inquiry into Undercover Policing and a FOI request to the Met Police by an author on a book about policing left-wing intellectuals, but absolutely nothing has been offered and made available by way of remedy in respect of his requests.
The case would have been a reasonable opportunity of providing clarification over whether seeking state information in the context of Article 10 and English Common Law freedom of information rights in the face of FOIA absolute exemptions should be adjudicated by the FOI Tribunal system or judicial review at the High Court, and if judicial review is the only course whether it should operate similarly to FOI Tribunal appeals with each side bearing its own costs.
Professor Crook began the Met Police Special Branch appeal over access to historical files concerning Goldsmiths’ College, University of London staff and students in early 2018, well before the Upper Tribunal ruling in Moss in July 2020. He and the ICO asked for the case to be joined to Moss so that the position of Article 10 standing rights raised by Magyar for journalists, historical researchers and public watchdog NGOs could be properly represented before Judge Stewart Wright. But this request was rejected by the Presidents of the Upper Tribunal and First Tier Tribunal (Information Rights).
Having said all this, an FOI applicant seeking to crack open the absolute exemptions in FOIA should have an arguable case via Section 78 of the legislation at judicial review in the High Court and can rely on the English Common Law powers of freedom of expression so strongly identified by the majority of UK Supreme Court in Kennedy v Charity Commissioners in 2014, and indeed European Convention of Human Rights freedom of expression powers in Article 10 so precisely identified in Magyar Helsinki v Hungary at the ECtHR Grand Chamber in 2016 as residing in journalists, academic researchers and NGOs pursuing public watchdog/public interest research and investigation projects.
The area needs an applicant with a very good and worthy cause, enough financial resources, and a qualitative team of media law counsel ready to do battle against government, public authorities and perhaps even the Information Commissioner.
It also goes without saying that FOI law in the UK needs urgent legislative reform. If the UK domestic courts are not prepared to observe the rule of law in the ECtHR Magyar ruling, Parliament should ensure the UK fulfils its treaty obligations as a member of the Council of Europe with adherence to the European Convention on Human Rights.
A number of professional historians are voicing their anger at the failures of FOI and abuse by government bodies and, indeed, the Royal Family of their monopoly control over historical archives and information.
Dr. Andrew Lownie has had published articles describing his frustrations and experiences and on 21st June 2023 wrote for the Daily Mail/Mail Online ‘The government must release secret files on the Royal Family. Hiding the truth means we are no better than a Banana Republic..’ See: https://www.dailymail.co.uk/news/article-12213771/Open-secret-royal-files-no-better-banana-republic.html
On May 17th 2023 he wrote for the Mail Online: ‘From Wallis Simpson’s affair with a car salesman to the FBI’s Mountbatten probe, our Royal Family and the government are colluding to destroy Royal records and falsify the past. Why do we let them?’ See: https://www.dailymail.co.uk/news/article-12090125/ANDREW-LOWNIE-allow-Windsors-government-censor-royal-history.html
What appears to be happening is that in the UK and USA previously released and accessible files under FOI laws in both countries are suddenly being withheld or disappearing in the manner of George Orwell’s main character Winston Smith in his dystopian novel Nineteen Eighty Four destroying files and articles previously published in The Times by dumping them down the blast furnace memory hole.
This continuing and outrageous abuse of the information and historical archives monopoly by UK state bodies is a disgrace to democracy.
It has become an absurd manifestation of what was previously regarded as unthinkable and unconscionable in fiction. How extraordinary that it has now become standard in real life practice.
PDF File media law briefing
Successful First Tier Tribunal FOI appeal by investigative journalist Gareth Davies and the Bureau of Investigative Journalism seeking financial documents and information from Thurrock Council 17th October 2022.
On 17th October 2022 The First Tier Tribunal partly ruled in favour of Gareth Davies in respect of the public interest balancing act in the qualified exemptions of FOIA under sections 36 or 43.
| Gareth Davies v Information Commissioner Additional Party Thurrock Council EA/2020/0241 | 14/10/2022 |
Determination of the disclosure request turned on whether, “in all the circumstances of the case, the public
interest in maintaining the exemption outweighs the public interest in disclosing the information”.
The majority view of the Tribunal set out in the ruling of Judge Anthony Snelson included the observation on the council’s wish to withhold some of the information sought:
‘We cannot avoid the sense that it stems in material part from a wish to avoid the embarrassment which public scrutiny of its remarkable financial activities would be likely to involve. The exemptions from the right to freedom of information must not be invoked as a means of sparing public bodies and their employees discomfort of this sort.’
Hold The Front Page reported 21st October 2022: ‘Journalist hopes three-year secrecy fight win will be landmark for local press.’
Mr Davies said: ‘The information we requested in 2019 will provide vital insight into disastrous investments which threaten to cost taxpayers hundreds of millions of pounds and to cripple a council that provides vital services to local people. It should never have taken three years to reach this point.’
To understand the journalistic context of this FOI appeal see Bureau of Investigative Journalism’s ‘Thurrock council reveals £500m black hole caused by ruinous business deals.’
And: ‘Thurrock council ordered to disclose details of ‘dodgy deals’ worth £1bn.’
Some 2022 First Tier Tribunal Hearings seeking to challenge the BBC’s use of exemptions in the Freedom of Information Act 2000
The Court had to decide whether the Balen Report about the BBC’s coverage of Israeli and Palestinian conflict was held for purposes other than those of journalism.
The claimaint, London solicitor Stephen Sugar, had died by the time the Court ruled. In a Herculean battle with the BBC he had represented the majority feeling in the UK’s Jewish population that the BBC was and still is biased in its reporting.
The FOI litigation had previously reached the previous apex of the legal system in 2009 when the Judicial Committee of the House of Lords ruled that for the purposes of FOIA, the BBC was a public authority.
The current politics, as reported by The Jewish Chronicle, is the BBC has conceded it does have impartiality issues in reporting the Israeli and Palestinian conflict and, indeed, issues of anti-Semitic coverage by the BBC are to be the subject of the Parliamentary inquiry.
The BBC was even ranked third in the Simon Wiesenthal Center’s “Global Antisemitism Top Ten List” for 2021.
As recently as January 5th 2023, Jan Shure has been arguing in the Jewish Chronicle ‘Why the BBC must finally publish Balen report’ and ‘It’s unacceptable that the Beeb still refuses to release its own document on anti-Israel bias.’
It seems something of a moot historical position for the BBC to continue keeping the Balen report under wraps, but the Corporation had spent hundreds of thousands of pounds in legal costs maintaining the cordon sanitaire FOIA provides under the derogation in Part IV of Schedule 1 FOIA, which provides that information held by the BBC is not disclosable pursuant to the FOIA if it is held for the ‘purposes …. of journalism, art or literature.’
The BBC’s tenacious defence in the Sugar case has also had the knock-on effect of blocking any reading down of the ECtHR Grand Chamber ruling in Magyar Helsinki v Hungary 2016 which provides for a qualified standing right to state information under Article 10 Freedom of Expression for journalists, academic researchers and NGOs with laudable public interest and social watchdog imperatives.
If anyone wants to use Human Rights to challenge absolute and qualified exemptions their only recourse is Judicial Review via Section 78 of FOIA (which states ‘Nothing in this Act is to be taken to limit the powers of a public authority to disclose information held by it.’).
This remedy is rather inhibiting for many journalists and academic researchers of limited means because of the very long pockets of public authorities who have a tradition of fighting tooth and nail to prevent disclosure of information they want to conceal.
Once FOI cases get into the High Court arena and above defeat means paying the other side’s costs.
The Information Commissioner is supposed to be an impartial regulator of freedom of information rights but has done nothing politically or legally to bring home the potential benefits of the Magyar ruling to the existing FOI regime.
At the end of 2022, the First Tier Tribunal turned down two attempts to obtain information from the BBC because of the purposes of journalism, art or literature exemption.
In David Keighley v ICO & BBC, the requester sought information about the adjudication of editorial guidelines on impartiality, copies of complaints, and the recruitment to a post that was then occupied by Professor Richard Sambrook.
In particular, Mr Keighley was investigating ‘complaints about impartiality with regard to handling of the recent controversy involving Dominic Cummings and his trips by vehicle to Durham and Barnard Castle under lockdown, including but not limited to any comments by Emily Maitlis.’
Essentially the FTT ruling upheld the application of the absolute exemption block that the information is held for the purposes of ‘journalism, art or literature’ and does not fall inside the FOIA.
The Tribunal’s ruling by Judge Brian Kennedy QC stated:
‘…this Tribunal is satisfied on the evidence before us that the closed material provided by the BBC is directly linked to the BBC’s journalistic output and is held by the BBC for the purposes of journalism.’
And:-
‘…this Tribunal is satisfied on the evidence before us that the closed material provided by the BBC in respect
of complaints made to the BBC and its handling of such complaints is sufficiently linked to journalistic output and is held by the BBC for the purposes of journalism.’
In Bonnington v ICO, the FTT sustained the BBC’s exemption in an FOI application by one of the BBC’s highly distinguished former media lawyers- Alistair Bonnington.
Mr Bonnington had sought the following information:
1) How many contacts by email or other electronic message sending system, phone call, letter or other method of communication were made by the following to BBC Scotland News on the subject of BBC Scotland’s News output:
a) the SNP
b) minsters of the Scottish Government or civil servants of the Scottish Government
c) Special Advisors (SPADs) on behalf of the Scottish Government.
The information sought must include contacts by agents or any other intermediaries
acting on behalf of the said groups mentioned in (a), (b) and (c)?
2) Further, what percentage of these contacts (1) urged a change in the BBC Scotland’s existing news output or (2) urged that certain information being supplied to the BBC in the contact should become a news story which BBC Scotland included in its output?
The Tribunal upheld the BBC’s position that ‘If held, the information you requested is held for the purposes of ‘art, journalism or literature’. The [Freedom of Information] Act provides that the BBC is not obliged to disclose this type of information.’
It could be argued that these two cases signify that there are many requests for information made about how the BBC goes about its journalism and self-regulation that in ordinary terms are arguably in the public interest but are shielded by an exemption which gives them a monopoly of information control and non-disclosure.
On the other hand it can also be argued that news and journalism publishers which are not public authorities under FOIA enjoy a similar statutory exemption in respect of Data Protection and because they are private bodies are outside the reach of freedom of information legislation.
Why should they have these privileges and the BBC not- which would be the BBC’s position without the Part IV of Schedule 1 FOIA exemption?
Mr Bonnington’s submissions, no doubt because of his experience and stature as BBC Scotland’s former media lawyer, are worthy of quotation. He put up a very good fight:
(1) FOIA enacts a presumption in favour of freedom of information. It is for the Commissioner to show that the derogation applies, not the other way around.
(2) The Commissioner wrongly conflated the two parts of the request.
(3) The first part was simply a request for a number.
(4) The Commissioner erred in ignoring the nature and quality of the information sought.
(5) The information sought had not been “gathered” by the BBC (for journalistic or any other purposes). It had just been forced on it from outside sources.
(6) The information sought could not have been seen as “newsworthy” at the time of the request and the BBC cannot have held it with a view to reporting it
publicly.
(7) The derogation should not be held to apply given that the BBC routinely publishes complaints about its services, including allegations of breaches of its duty of political impartiality.
(8) The derogation is inapplicable because the BBC did not hold it with the immediate object of using it for journalistic purposes (Sugar, para 67 (Lord Phillips)); alternatively there was not the necessary proximity between the subject matter of the request and the BBC’s journalistic activities and end product (Sugar, para 83 (Lord Walker).
The 12 December promulgated ruling by Judge Anthony Snelson concluded: ‘We have stepped back to review the arguments in the round. Having regard to the purpose of the derogation as explained in Sugar (see para 28 above), we are entirely satisfied that the Commissioner arrived at the correct outcome and we can see no possible ground for reaching a different view.’
Before we step away from the BBC and FOI for the time being, it is worth mentioning that some controversy remains about the BBC’s handling of FOI requests from investigative journalist Andy Webb over the BBC Panorama Diana interview and reporter Martin Bashir scandal.
You may recall Lord Dyson’s highly criticial report about the matter commissioned by the BBC itself.
Mr Webb has complained that there is a disconnection between the BBC’s refusal in respect of FOI requests in made in 2007 and then their disclosure two days before the transmission of a documentary he made for Channel 4 in 2020. See:
‘In July 2020 Andy Webb of Blink Films (the producers of the Channel 4
programme) renewed his 2007 FOIA request.
• The BBC initially relied on the journalistic exemption under Part 4, Schedule 1 FOIA 2000. This exemption had not been claimed in 2007, and it certainly is questionable whether it applied.
• Attached is the letter that the BBC sent to Andy Webb on 19 October 2020, which supplied 67 FOIA documents, while explaining the grounds of their earlier failure to supply the documents in response to his 2007 FOIA request.
The BBC response came two days before the broadcast and, as he has pointed out in the Sunday Times of 8 November 2020, too late for the documents to be included in the film.
• The BBC’s explanation for the incorrect answers given in 2007 was that they were based on supposition rather than established fact. They should, they said, have taken steps to ascertain whether the relevant information had been supplied. That, one might think, was after all the purpose of the FOIA.
• The enquiry should examine all the documentation relating to the FOIA requests and ensure that all the documentation relating to the programme is produced.
In September 2023, Andy Webb proceeded with a First Tier Tribunal (Information Rights) appeal against the BBC’s resistance to release email files relating to the Martin Bashir inquiry. The appeal has been vigorously defended by the BBC.
See Mail Online 5th September 2023: “Documentary maker accuses BBC of ‘cover-ups and lies’ over Martin Bashir’s interview with Princess Diana. The broadcaster is accused of failing to release material relating to the scandal.”
And Mail Online 9th September 2023: ‘BBC spends £100,000 of licence-payer’s money in bid to keep emails related to Martin Bashir’s infamous interview with Princess Diana secret as documentary-maker fights to make thousands of documents public.’
See previous reports:-
BBC to release potentially explosive Martin Bashir emails after losing 18-month FOI battle
Ofcom- COMPLAINT IN RESPECT OF THE BBC, PANORAMA AND MARTIN BASHIR
Adjudicating Section 14 FOIA- vexatious or merely irritating and inconvenient requests? Jared O’Mara v ICO and South Yorkshire Police
Many professional journalists and news publishers are familiar with public bodies resorting to the Section 14 FOIA qualified exemption to deny requests for information on the grounds that they are vexatious.
And it could be argued that over the years the Information Commissioner has tended to side with the public bodies where there are appeals.
But a ruling of the First Tier Tribunal Information Rights promulgated 19th April 2023 could place a safeguard and useful precedent against this tendency when the request, in whatever context, is clearly reasonable.
See: O’Mara v Information Commissioner [2023] UKFTT 381 (GRC) (19 April 2023)
Direct link https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKFTT/GRC/2023/381.html
Introduction and Decision Notice at the heart of the case paragraphs 1 to 3:
‘Introduction
- On 31 March 2021, Mr O’Mara made the following request for information to South Yorkshire Police (“SYP”):
I would like to place a Freedom of Information Request for all information you hold on the Police and Crime Act 2017 in relation to charging referrals made by the police after a suspect’s relevant bail period has expired and where the suspect then accordingly defaults to Release Under Investigation by way of police decision.
Please do not process any of my personal data in relation to this request.
Please also do not designate my request as being Vexatious as this information holds huge value to the general public”.
- Having had no reply, on 4 May 2021 Mr O’Mara complained to the Commissioner. After some delay concerned with the correct provision of documents, on 8 June 2021 the Commissioner contacted SYP requiring that a response be given to Mr O’Mara within 10 working days. SYP then took until 2 July 2021 to issue its response, which was that it refused to comply with the request because it considered it to be vexatious. There then followed a significant exchange of correspondence between the three parties until, on 24 March 2022, the Commissioner issued a Decision Notice ( [2022] UKICO ic-104057 ) concluding that SYP had indeed been entitled to refuse the request on that basis.
The Decision Notice
- The Commissioner agreed with SYP that the request was vexatious. SYP’s initial response to the Commissioner following Mr O’Mara’s complaint was sent by its Data Protection Officer, Ms Amanda Winder. The factors relied upon in her letter can be summarised as follows:
a. This was Mr O’Mara’s “51st request received into [SYP’s FOI] department, his 27th FOI request”;
b. Overlapping requests for the same or similar information would often be received before SYP had a chance to respond to earlier requests – a table was provided setting them out;
c. He had previously complained to the Commissioner about other vexatious requests, which SYP had reopened “out of goodwill”;
d. He had made unfounded accusations about SYP and others, for example accusing Ms Winder as Data Protection Officer of “acting in a criminal, fraudulent and corrupt manner” which was unfounded and upsetting;
e. SYP believed that Mr O’Mara acted out of a deliberate intention to cause disruption and annoyance to that organisation;
f. The present request was similar to four other specified requests.’
Conclusion on Vexatiousness at paragraphs 56 to 58:
Conclusion on vexatiousness
- We take a broad and holistic view, taking into account all the circumstances set out above without repeating them, to find that SYP were not entitled to treat the request as vexatious, and therefore as exempt from the duty at s.1 of FOIA. Without doubt, Mr O’Mara’s requests in early to mid-2020 looked likely to become disproportionately burdensome to SYP. There would have been justifiable concerns about his motive and the value of the information he sought.
- Yet in subsequent requests, Mr O’Mara changed his ways. While public authorities, the Commissioner and the Tribunal more commonly encounter a relentlessly deteriorating pattern of requests, here the opposite had occurred. It is unfortunate that this was not recognised by SYP; the present request followed a positive trend, having all the characteristics one might wish: easily complied with; politely and respectfully worded; on a new topic with an identifiable public interest; and coming some six months after any previous request. Parliament did not intend s.14 to operate as a permanent bar against making requests. If there was ever a point at which SYP was entitled to treat Mr O’Mara’s requests as vexatious, then it had long passed by 31 March 2021. There was no basis to consider that the burden of complying with the request was disproportionate to the motive and its value, given the high threshold of vexatiousness. We disagree with SYP’s characterisation of the situation, summarised at paragraphs 3 to 8 above.
- We therefore allow the appeal on the basis that, on the facts as we have found them to have been, the Commissioner was wrong in law to find that the request was dealt with in accordance with the provisions of FOIA. The appropriate decision is for the request to be re-considered without applying s.14(1).’
Eloise Spensley of the Jaffa Law Column for Hold The Front Page provided cogent and instructive analysis of this case 2nd May 2023 under the headline: ‘Why journalists should chase public bodies which miss FoI deadlines.’
Eloise Spensley observed: ‘The Tribunal found that the request in question possessed all the characteristics that one might wish of a reasonable submission and therefore found the characterisation of the request as vexatious to be unreasonable.’
The media lawyer added: ‘The Tribunal reserved harsh criticism for the Police, stating that they had not found any evidence of a “wider pattern” of behaviour that suggested Mr O’Mara had behaved unreasonably, noting that chasing a response following the passage of a deadline could hardly be classed as harassing.’
PDF file briefing on this topic
BBC successfully appeals against Freedom of Information request sought by another journalism publisher July 17th 2023
The BBC won a First Tier Tribunal appeal against the UK’s journalism trade online magazine Press Gazette which sought to find out the cost of commissioning a value-for-money report.
The study, conducted by MTM, found UK households “underestimated” the value of the licence fee.
On 3rd May 2022 Press Gazette sent an FOI request asking the BBC to reveal the total cost of producing this report. The BBC declined to release the information, citing section 43(2) of the FOI Act that protects “commercial interests” and upheld this decision after Press Gazette asked for an internal review.
In an appeal to The Information Commissioner’s Office, Press Gazette won their argument and ICO ordered the BBC to release the figure. The commissioner said the BBC had failed to demonstrate how the release of the information would damage its commercial interests.
But the BBC appealed to the First Tier Tribunal (Information Rights) arguing its commercial interests would be harmed because it could affect future negotiations with other market research agencies and disclosure would also ‘be likely to harm the commercial interests of MTM.’
The Tribunal ruled Press Gazette’s public interest did not outweigh the BBC’s commercial interests.
This is yet another example of the BBC as a corporate journalism publisher with imperatives to promote freedom of expression in the public interest successfully defending itself against individuals and journalism publishers seeking information in the public interest and wishing to uphold freedom of expression.
It could be argued there were two double ironies operating here: Press Gazette investigating the value for money of a value for money report, and a journalism publisher for the UK’s journalism industry asking the UK’s biggest employer and publisher of journalism to release information in the public interest.
See FTT Appeal Number: EA/2022/0376 BBC v ICO & William Turvill at: https://informationrights.decisions.tribunals.gov.uk/DBFiles/Decision/i3223/BBC%20v%20ICO%20&%20William%20Turvill%20-%20EA.2022.0376%20-%20Decision.pdf
Secondary Media Law Codes and Guidelines
IPSO Editors’ Code of Practice in one page pdf document format https://www.ipso.co.uk/media/2032/ecop-2021-ipso-version-pdf.pdf
The Editors’ Codebook 144 pages pdf booklet 2023 edition https://www.editorscode.org.uk/downloads/codebook/codebook-2023.pdf
IMPRESS Standards Guidance and Code 72 page 2023 edition https://www.impress.press/wp-content/uploads/2023/02/Impress-Standards-Code.pdf
Ofcom Broadcasting Code Applicable from 1st January 2021 https://www.ofcom.org.uk/tv-radio-and-on-demand/broadcast-codes/broadcast-code Guidance briefings at https://www.ofcom.org.uk/tv-radio-and-on-demand/information-for-industry/guidance/programme-guidance
BBC Editorial Guidelines 2019 edition 220 page pdf http://downloads.bbc.co.uk/guidelines/editorialguidelines/pdfs/bbc-editorial-guidelines-whole-document.pdf Online https://www.bbc.com/editorialguidelines/guidelines
Office of Information Commissioner (ICO) Data Protection and Journalism Code of Practice 2023 41 page pdf https://ico.org.uk/media/for-organisations/documents/4025760/data-protection-and-journalism-code-202307.pdf and the accompanying reference notes or guidance 47 page pdf https://ico.org.uk/media/for-organisations/documents/4025761/data-protection-and-journalism-code-reference-notes-202307.pdf
UK Media Law Pocketbook Second Edition 