8. APPEALS AND
THE INFORMATION
COMMISSIONER
8.1 The objective of resolving complaints in weeks not months
is laudable but hard to achieve. The Registrar has some experience
of handling large numbers of complaints, currently about 4000
per annum. Where a complaint needs investigation, the practicalities
of exchanging correspondence and conducting interviews makes it
difficult to dispose of any case in less than three months. This
is especially so when a voluntary approach is adopted. The Registrar
applauds the formal introduction of a mediation phase, but that
needs to be supported by efficient compulsory investigative systems.
The Information Commissioner needs to be placed in the position
where if he is faced with delay or obstruction by a government
department or other organisation, he is entitled to presume that
the complaint is well-founded and order disclosure of the information.
That approach would be consistent with the presumption of disclosure
set out in paragraph 3.1 of the White Paper. There then needs
to be some consideration of what sanction might be applied to
a recalcitrant government department. The problem of crown immunity
from prosecution and the power of the courts to grant injunctions
against the Crown will have to be considered. The Commissioner
should not be left sanctionless.
8.2 It is intended that the Information Commissioner should
be the final appeal subject to judicial review by the Courts,
but without any judicial appeal on the merits. It is not clear
whether the Information Commissioner will be a Tribunal subject
to the supervision of the Council on Tribunals, as is the case
with the Data Protection Registrar. The Council normally expects
certain formalities in those decision-making processes which will
have a legal consequence. These processes which require the giving
of notice and an opportunity to be heard will be of particular
importance if the rights of third-parties are to be affected by
an FOI disclosure. These processes are not readily compatible
with the disposal of complaints in weeks rather than months.
8.3 Paragraph 5.19 expressly raises the issue of third-party
rights and the question of third-party appeals. It follows from
section 7 of this memorandum that the Data Protection Registrar
strongly believes that individuals must have a right of appeal
if it is proposed to disclose information about them. Notice should
be given to the individual by the organisation proposing to make
the disclosure. The individual should not have to demonstrate
'substantial harm'; it should be for the disclosing organisation
or the applicant for the information to demonstrate that there
is a sufficiently strong public interest that the test in Article
8(2) of the ECHR can be satisfied and the right of privacy over-ridden.
In this context one should bear in mind Article 6 of the ECHR
which requires that 'in the determination of his civil rights
. . . everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal established
by law." It seems to the Registrar that the decision to disclose
information prima facie in breach of Article 8(1) of the ECHR
is a question of determination of an individual's civil rights
and there is no alternative other than to provide a proper appeal
for the individual affected.
8.4 In paragraph 5.7 the White Paper draws comparisons between
the Data Protection Registrar, the Parliamentary Commissioner
(the Ombudsman) and the proposed Information Commissioner. The
paragraph is written in a way which might give a misleading impression.
It is true that the Registrar is not a servant of Parliament and
that she is appointed by the Crown and her actions can be controlled
by the courts through the mechanism of judicial review. On the
other hand, the Registrar is expressly required to report directly
to Parliament which she does at least annually. Independence in
enforcing statutory responsibilities should not mean lack of accountability.
8.5 The Registrar greatly values her independence as a consequence
of which she is answerable to the courts and reports to Parliament,
but is not responsible to Ministers for the execution of her office.
The Registrar believes her office to be an apt analogy for the
roÃle and status of the Information Commissioner, given
the Commissioner's function in enforcing the law on government.
The Registrar, however, believes that a close association with
a select committee is valuable. The functions of the Information
Commissioner are inherently sensitive and political. The opportunity
to report regularly to and consult parliamentarians, as does the
Parliamentary Commissioner, could be combined with the independent
status of the Commissioner and might well provide the post with
valuable support.
9. CONCLUSION
9.1 FOI and privacy laws overlap and conflict. It is doubtful
whether there can be a neat interface between the two types of
legislation. Overlapping access rights are acceptable and the
White Paper sets out to give individuals straightforward and extensive
rights to information about themselves under whatever legislation
it is obtained and at a charge not exceeding that payable under
the 1984 Act.
9.2 In the area of conflict between the laws, the Registrar
would ask for some further thought to be given to the interface
between regimes to be applied. The general presumption of disclosure
is unexceptionable in the case of general, factual or anonymous
information. It raises serious issues of principle in the case
of private or confidential personal information. There will be
entirely proper occasions for the release of such information
on public interest grounds, but the presumption needs to be in
favour of individual privacy.
9.3 It will be important to ensure that so far as practicable
the principles enforced by the Information and Data Protection
Commissioners are compatible, that the rights of third parties,
especially individuals, are protected, and that mechanisms are
created to resolve conflicts between the FOI and privacy jurisdictions.
If those steps are taken, the Data Protection Registrar looks
to the new Information Commissioner as a valuable colleague in
a new era of open public administration.
January 1998
2 pp. 13 and 14 of Freedom of Information: Key Issues,
The Campaign for Freedom of Information, December 1997. Back
3 Council
of Europe Convention for the Protection of Human Rights and
Fundamental Freedoms, European Treaty Series 5. Back
