“As part of an ongoing dialogue on migration related issues between the UK and Eritrean governments, a joint delegation of senior Home Office and Foreign Office officials visited Eritrea on 9-11 December. The delegation held a number of discussions with government ministers, officials and non-government actors on topics including the current drivers of irregular migration, ways to mitigate it, and voluntary and enforced returns. The meetings were constructive and identified a number of potential areas for joint co-operation, including on returns. We are now considering how best to use the information gathered during the visit to develop our approach to managing migration from Eritrea.”
“The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.”
“(i) Is the data controller or the third party or parties to whom the data are disclosed pursuing a legitimate interest or interests? (ii) Is the processing involved necessary for the purposes of those interests? (iii) Is the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject?”
“26. Mr. Marsh dealt also with the naming of junior officials. He referred to the familiar precept in Home Office v Information Commissioner EA/2011/0203 to the effect that the personal data, including names, of junior civil servants (in some cases a misleading term) are generally protected from disclosure unless they occupy a public-facing role. He acknowledged that there was no blanket rule and every case had to be treated on its particular facts. Grade 7 civil servants and HEOs have important managerial and advisory functions. They often have significant responsibilities. Their reports and recommendations may go to ministers. However, where serious policy or resource issues are involved, a Grade 7 official or an HEO, must refer the matter to a Senior Civil Servant (an ‘SC’) who is accountable to the minister for the action taken. If a report by a Grade 7 civil servant goes to a minister, it does so because it has been vetted and approved by an SC. The SC, not the Grade 7, carries the can. This principle is enshrined in the HO Guidance which states that ‘G7s may contribute significantly to decisions taken by senior grades and ministers’”
“There may well be a pressing social need for the public to know the policy and its application (encapsulated, on the facts of this case, in the content of the communications to which B and C put their names). There may also be such a need for the public to know how policy is developed and who, in the higher levels of the civil service, takes responsibility for its development. However, we can see no such need for the public to know the identity of an individual who does no more than communicate basic policy detail or explain its effect at the level of detail appearing in the communications with which we are concerned in this Appeal.”
“Where the legislature has thus worked out the way that the requirements of data protection and freedom of information are to be reconciled, the role of the Cox v Information Commissioner and Home Office[2018] UKUT 119 (AAC) courts is just to apply the compromise to be found in the legislation. The 2002 Act gives people, other than the data subject, a right to information in certain circumstances and subject to certain exemptions. Discretion does not enter into it. There is, however, no reason why courts should favour the right to freedom of information over the rights of data subjects.”
“The focus must be on the data subject and the protection of that person’s privacy, as that is the policy of the DPA. In those circumstances, it seems preferable to take account of the FOIA language at the second and third stages of applying paragraph 6(1) rather than distorting the analysis of the interests of the person making the request.”
“is impossible to apply paragraph 6(1) without having regard to the identity of the applicant, the interest pursued by the request, and the extent to which information is already potentially available to the public.”
“Prevention of disclosure or publication of documents and information 14.—(1) The Tribunal may make an order prohibiting the disclosure or publication of— (a) specified documents or information relating to the proceedings; or (b) any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified. … (6) The Tribunal may give a direction that certain documents or information must or may be disclosed to the Tribunal on the basis that the Tribunal will not disclose such documents or information to other persons, or specified other persons. (7) A party making an application for a direction under paragraph (6) may withhold the relevant documents or information from other parties until the Tribunal has granted or refused the application. (8) Unless the Tribunal considers that there is good reason not to do so, the Tribunal must send notice that a party has made an application for a direction under paragraph (6) to each other party. (9) In a case involving matters relating to national security, the Tribunal must ensure that information is not disclosed contrary to the interests of national security. (10) The Tribunal must conduct proceedings and record its decision and reasons appropriately so as not to undermine the effect of an order made under paragraph (1), a direction given under paragraph (2) or (6) or the duty imposed by paragraph (9).”
“50. As already indicated, the HO provided Mr. Cox with what were broadly job descriptions relating to the three shortly before the hearing, though for the purposes of conducting this appeal, not under FOIA. Ms. Pickup raised the issue whether they should not be disclosed under FOIA, that is, to the general public. The Tribunal invited written submissions on the question. Ms. Pickup submitted that they should. They had been referred to at an open hearing and the starting point was that they were now public documents and anybody was now entitled to make use of them as they chose. R. (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates' Court[2012] EWCA Civ 420 , [2013] Q.B. 618. This was subject to the Tribunal’s power to prohibit disclosure pursuant to Rule 14(1) of the 2009 Rules, though such power must be exercised with due regard to the principles of open justice and fairness. Mr. Pievsky, for the HO, argued that these documents were not within the scope of the request but stated that the HO did not object to disclosing them (subject to redaction of personal data) and was willing to treat an application for disclosure from Mr. Cox (which has been made) as a FOIA request with which the HO would comply. He argued, however, that the last sentence in each document contained the personal data of the individual concerned and that they should be redacted accordingly, although referred to in the evidence. The Tribunal, following Cox v Information Commissioner and Home Office[2018] UKUT 119 (AAC) subsequent discussion by telephone conference, decided to direct that the redacted passages should not be disclosed because disclosure was unnecessary to any legitimate purpose. Subject to that direction, the job descriptions should be disclosed under FOIA.”
“74. It would be quite wrong in my judgment to infer from the exclusion of court documents from the Freedom of Information Act that Parliament thereby intended to preclude the court from permitting a non-party to have access to such documents if the court considered such access to be proper under the open justice principle. The Administrative Court's observation that no good reason had been shown why the checks and balances contained in the Act should be overridden by the common law was in my respectful view to approach the matter from the wrong direction. The question, rather, was whether the Act Cox v Information Commissioner and Home Office[2018] UKUT 119 (AAC) demonstrated unequivocally an intention to preclude the courts from determining in a particular case how the open justice principle should be applied.”
“… when the court is determining an open justice issue by weighing competing Convention rights it must have regard to the fundamental common law principle of open justice and the weight given to it, and thus the public interest reasons for it, by the courts in England and Wales. The exercise is fact and circumstance sensitive and, on this approach, a departure from open justice must be justified.”