Internal review of response to request under the Freedom of
Information (FoI) Act 2000 (the Act) by UKBA (reference 12862)
Responding Unit: United Kingdom Border Agency
Chronology
FoI request received by UKBA: 23/09/09
Acknowledgement: 24/09/09
Request for 1st internal review: 28/10/09
UKBA response to 1st internal review request: 16/11/09
UKBA response to FoI request: 18/01/10
Request for 2nd internal review: 05/02/10
Subject of request
1. On the 23 September 2009 Mr Sittampalam (the applicant) submitted
a FoI request to UKBA seeking disclosure of
“all evidence gathered” during the UKBA investigation into the alleged il egal employment by
Patricia Mawhinney (Baroness Scotland) of an individual (Ms Tapui)
alleged to lack permission to undertake full employment in the UK.
2. Mr Sittampalam further clarified the scope of his request by stating
that his particular interest was focused on the disclosure of
‘evidence’ supporting the assertion that Baroness Scotland took steps to check
the documentation of Ms Tapui prior to engaging her in employment.
3. As a caveat to his request, Mr Sittampalam stated that he recognised
that the information requested may well constitute the personal data
of Baroness Scotland and Ms Tapui. Nonetheless Mr Sittampalam
believed that such concerns were overridden, given the status of
Baroness Scotland and the volume of public commentary already
made on the issue.
4. Furthermore, Mr Sittampalam stated he believed that given the UKBA
investigation had been concluded, disclosure of the requested
material would not be liable to cause prejudice to any
“ongoing
proceedings whose outcome is stil in doubt”.
The response by UKBA
5. On 18 January 2010 UKBA responded to Mr Sittampalam. The
response served to outline that whilst the requested information was
held it would not be communicated as it was seen to be exempt from
disclosure pursuant to engagement of the exemptions under section
30 (1) (b) and section 40 (2) of the Act.
6. As the exemption under section 30 (1) (b) is a qualified exemption the
requisite public interest balancing arguments were then outlined to Mr
Sittampalam. Both the arguments for and against disclosure were
stated and assessed. It was concluded however that in this instance
the public interest favoured upholding the exemption engaged.
7. In the case of the absolute exemption under section 40 (2) of the Act,
Mr Sittampalam was informed that UKBA policy prohibited the
disclosure, to a third party, personal information of another individual.
It was stated that disclosure of the material requested would breach
the Data Protection Act, 1998, (DPA) on the grounds that such would
violate the condition of fair and lawful processing as necessitated by
the data protection principles. Accordingly the exemption under
section 40 (2) was seen to be engaged.
8. As the exemption at section 40 (2) is an absolute exemption no public
interest considerations were stated.
First internal review request by Mr Sittampalam
9. On 28 October 2009 Mr Sittampalam requested an internal review
into the length of time taken by UKBA to respond to his FoI request. It
is noted that at the point that Mr Sittampalam requested this internal
review he had yet to receive a substantive response by UKBA to his
initial FoI request.
10. On the 16 November 2009 UKBA wrote to Mr Sittampalam in
response to his request for an internal review. UKBA apologised for
the ongoing delay in resolving Mr Sittampalam’s request and
accordingly noted that the failure to provide him with a response by
21 November 2009 constituted a breach of section 10 (1) of the Act.
11. It should be noted that the date of 21 November 2009 quoted to Mr
Sittampalam in this correspondence is seen to be incorrect and is
accordingly presumed to be a typographical error. In actual fact the
date by which a response had been due to Mr Sittampalam’s FoI
request was 21
October 2009.
Second internal review request by Mr Sittampalam
12. On 5 February 2010 Mr Sittampalam requested a second internal
review of his FoI enquiry.
13. Mr Sittampalam qualified his request by highlighting three specific
issues that he wished the internal review to address:
(i)
The validity of the exemptions cited in the UKBA response of
18 January 2010
(i )
The length of time taken by UKBA to respond to his FoI
request
(i i)
What actions UKBA are undertaking to improve future FoI
performance
Refinement of Mr Sittampalam’s second internal review request
14. The purpose of this review is to determine whether Mr Sittampalam’s
FoI request of 23 September 2009 was discharged in line with
UKBA’s statutory obligations under the Act. Namely, whether the
response by UKBA was provided within an acceptable time frame
and whether the exemptions cited were properly engaged.
15. Accordingly, with reference to such, it must be noted that point (i i) of
Mr Sittampalam’s correspondence of 5 February 2010 is seen to fal
outside the scope of this review to answer. As such this point wil not
be formally addressed in the main body of this internal review.
16. This said, UKBA are keen to express that they take seriously the
concerns raised by Mr Sittampalam. UKBA are fully committed to
meeting their obligations under the Freedom of Information Act and it
is recognised that in this instance the service provided fell short of the
standards that Mr Sittampalam might reasonably expect. Moving
forward, UKBA are committed to improving performance under FoI
and hope to address such through better internal monitoring of FoI
processes as well as more effective training and resource allocation.
Procedural issues
17. Mr Sittampalam’s request is recorded as having been received by
UKBA on 23 September 2009. Accordingly the deadline for
responding was calculated to be 21 October 2009.
18. Formal acknowledgement of Mr Sittampalam’s FoI request was made
by UKBA on 24 September 2009.
19. The final response provided to Mr Sittampalam’s request was made
by UKBA on 18 January 2010. This date is noted to be in excess of
the statutory deadline by which Mr Sittampalam was entitled to
receive a response.
20. In this respect UKBA are seen to have breached section 10 (1) of the
Act by failing to provide a response compliant with section 1(1) of the
Act within 20 working days of receipt of Mr Sittampalam’s request.
21. Furthermore, in failing to notify Mr Sittampalam within 20 working
days that additional time was required to consider the application of
the section 30 qualified exemption, UKBA are seen to have breached
section 10 (3) of the Act.
22. It is noted though that when Mr Sittampalam was provided with a
response to his FoI request both section 1 (1) and section 17 (1) of
the Act were satisfactorily discharged. Specifically, Mr Sittampalam
was informed that the requested information was held by UKBA, but
would not be communicated to him, with detailed reasons being given
as to why such was the case.
23. I am satisfied that the response of 18 January 2010 informed Mr
Sittampalam in writing of his right to request an independent review of
the handling of his request as allowed for in section 45 (2) (e) of the
Act.
24. I am further satisfied that Mr Sittampalam was informed in writing of
his right of complaint to the Information Commissioner as required by
section 50 of the Act.
Consideration of the response
25. As noted in point 5 of this review,
on 18 January 2010 UKBA
responded to Mr Sittampalam’s enquiry by informing him that
although the requested information was held, such would not be
communicated to him. The response served to explain that the
requested information was seen to be exempt from disclosure as it
was believed to engage exemptions at section 30 (1) (b) and section
40 (2) of the Act (each of which are detailed in
Annex A).
26. For the purpose of clarity I wil examine the application of each
exemption in turn. I wil consider whether the exemption was correctly
engaged and furthermore whether the public interest was satisfied in
al circumstances.
Section 30 (1) (b)
27. The UKBA response of 18 January 2010 stated that the exemption
under section 30 (1) (b) of the Act was engaged on the grounds that
the requested material was held by UKBA for the purposes of
investigations that might lead to a decision to instigate criminal
proceedings.
28. As the material specifically requested by Mr Sittampalam was
characterised as being the
‘evidence gathered’ by UKBA during their
investigation of Baroness Scotland, I am satisfied that the exemption
under section 30 (1) (b) was correctly applied.
29. Furthermore, having examined UKBA’s consideration of the requisite
public interest concerns necessitated by the exemption at section 30
(1) (b) of the Act, I am satisfied that this obligation has been fully
discharged.
30. Specifically, I support the conclusion of UKBA that the genuine public
interest in disclosure of the material this exemption applies to is
outweighed in this instance by the necessity to safeguard the ability
of UKBA to effectively and robustly pursue individuals suspected to
be contravening laws on il egal working. To disclose information
revealing the specific methodology of UKBA investigative procedures
and the grounds on which subsequent penalties might be levied is
seen to not only impact on current investigations being undertaken by
UKBA, but also to undermine the ability to pursue similar proceedings
on future occasions. As such the public interest is seen to be best
served by keeping such sensitive information out of the public domain
and denying any advantage to individuals seeking to avoid censure
for breaching laws on il egal working and employment.
Section 40 (2)
31. The UKBA response of 18 January 2010 stated that the exemption
under section 40 (2) of the Act was engaged on the grounds that the
disclosure of the requested material would entail the unwarranted
release, to a third party, sensitive personal information about another
person.
32. The response detailed how, under the provisions of the DPA,
personal data can only be processed if it meets the requirements of
the data protection principles. UKBA then outlined how disclosure of
the requested sensitive personal data would only be possible if such
processing was fair, lawful and satisfied one condition each of both
schedule 2 and schedule 3 of the DPA.
33. UKBA informed Mr Sittampalam that following careful consideration it
had been determined that disclosure of the requested information
would not constitute fair or lawful processing, nor meet any of the
conditions of either schedule 2 or 3 of the DPA. As such Mr
Sittampalam was informed that UKBA would not disclose the
requested information as such would constitute a breach of the DPA
34. Having examined the content of the requested material I can confirm
that such is seen to constitute the sensitive personal data of
identifiable living individuals.
35. Accordingly the disclosure of such information would be seen to be
unfair to the concerned data subjects who would have no expectation
that their sensitive personal data would enter the public domain within
their lifetimes.
36. Consequently, on these grounds I am satisfied that the exemption at
section 40 (2) of the Act was correctly engaged.
37. As the exemption at section 40 (2) of the Act is an absolute
exemption no public interest considerations apply.
38. With reference however to point 3 of this review (Mr Sittampalam’s
contention that data protection considerations should be overridden)
it should be noted that the sensitive personal data under discussion
pertains to multiple individuals, not only Baroness Scotland.
39. In light of such I must conclude that Mr Sittampalam’s arguments do
not support the presumption that the public interest in this matter is
sufficient to override the legitimate expectation of private individuals -
not otherwise in the public eye – that their sensitive personal data
would not be unfairly disclosed within their lifetimes.
Consideration of Mr Sittampalam’s request in light of developments
regarding ongoing prosecution proceedings
40. As Mr Sittampalam may be aware, since submitting his initial FoI
request there have been significant developments in the ongoing
investigation of Ms Tapui’s alleged ineligibility to undertake full time
employment in the UK.
41. Specifically, as widely reported in the public domain, Ms Tapui
appeared before Southwark Crown Court on 18 January 2010
whereupon she denied certain of the charges leveled against her.
The consequence of such being that it was determined that Ms Tapui
would face trial on 6 April 2010.
42. Though not initially falling within the scope of this internal review, I am
obliged to note that the above developments are of a nature that the
information requested by Mr Sittampalam under FoI is now seen to
engage a different range of exemptions than those initially cited to
him.
43. Specifically, the information requested by Mr Sittampalam on 23
September 2009, at this juncture, in addition to the exemption under
section 40 (2), is also seen to engage the exemptions under section
31 (1) (c) and section 44 (1) (c) of the Act (each of which are detailed
in
Annex A).
44. It is important to note however that the additional exemptions now
seen to be engaged were not applicable at the time of Mr
Sittampalam’s FoI request of 23 September 2009 and accordingly are
not being engaged retrospectively.
45. This point is especially relevant to the engagement of the exemption
under section 31 (1) (c).
46. The exemption under section 31 (1) (c) was not seen to be engaged
on 23 September 2009 when Mr Sittampalam submitted his initial FoI
request, but rather is only seen to be applicable in light of the court
proceedings now brought against Ms Tapui.
47. However, the decision to now engage this exemption with regards to
the information requested by Mr Sittampalam precludes the
engagement of the exemption under section 30 (1) (b) already cited.
48. So in effect, although this internal review has determined that the
section 30 (1) (b) exemption was correctly engaged in the response
of 18 January 2010, such is presently seen to be supplanted by
engagement of the exemption under section 31 (1) (c) of the Act.
49. For the purposes of clarity I will examine in turn with the exemptions
under section 31 (1) (c) and section 44 (1) (c) now seen to be
engaged. In each instance I wil state the reason why each exemption
is seen to be engaged and any requisite public interest
considerations affecting such.
Section 31 (1) (c)
50. The exemption under section 31 (1) (c) of the Act allows for the
exemption of the duty to communicate information if such would, or
would be likely, to prejudice the administration of justice.
51. Having carefully examined the material requested by Mr Sittampalam
in his FoI request of 23 September I can confirm that such pertains to
the circumstances of the engagement of Ms Tapui in employment by
Baroness Scotland.
52. As the court proceedings scheduled to be undertaken against Ms
Tapui on 06 April 2010 are concerned with this specific issue, it is my
determination that the release into the public domain of evidential
material explicitly relating to such would be seen to inappropriately
affect the ‘ability’ of such proceedings to effectively discharge the
administration of justice.
53. Accordingly, with respect to the issues highlighted in points 40 and 41
of this review, it is my determination that the exemption under section
31 (1) (c) of the Act should be engaged as the disclosure of the
material requested by Mr Sittampalam would be likely to prejudice the
administration of justice.
54. As the exemption under section 31 (1) (c) of the Act is a qualified
exemption, its engagement is contingent on demonstrating that the
balance of public interest supports the argument for non-disclosure.
Specifically, to engage this exemption requires the demonstration that
the prejudice that disclosure would likely cause to the administration
of justice, in all circumstances of the case, outweighs the public
interest that exists in the release of the requested information.
55. The arguments in favour of disclosing the requested information turn
upon the very real public interest that exists regarding the specifics of
Ms Tapui’s case and the need to be reassured that this individual is
being dealt with in a fair and balanced manner.
56. Given the high profile nature of this case and the involvement of such
a senior government official as Baroness Scotland, it may be argued
that there is legitimate public interest in ensuring this party is properly
dealt with by the courts in an entirely non-partisan fashion. Something
that might be assured by public scrutiny of the material requested by
Mr Sittampalam.
57. Furthermore it may reasonably be argued that disclosure of the
requested material would increase public understanding of
immigration law and the obligations that employers have under such.
58. The arguments against disclosure of the requested information are
concerned with the prejudice that would be liable to occur to the
administration of justice were the requested information released.
59. Specifically, it is argued that disclosure of the requested information,
at this juncture, would be likely to prejudice the ongoing legal
proceedings that Ms Tapui is party to. This is because materials
requested by Mr Sittampalam are likely to be relevant to the conduct
of these proceedings.
60. The right to a fair trial is a cornerstone of UK law and fundamental to
the conduct of a free and democratic society. Accordingly,
irrespective of the legality of Ms Tapui’s immigration status, this
individual has the right to expect that she would be guaranteed the
same opportunity of a fair trial as any other member of the UK
population.
61. As such, for UKBA to disclose materials prior to the commencement
of Ms Tapui’s trial that may be seen to have a bearing on the
outcome of such would be wholly inappropriate and contrary to the
purpose of the legal proceedings themselves – namely to ensure that
justice is properly administered.
62. Accordingly, following careful consideration of the above public
interest considerations I conclude that the public interest arguments
in favour of withholding the requested information are substantially
more compelling than those in favour of release. I am therefore
content that the material requested is exempt from disclosure under
the exemption at section 31 (1) (c) of the Act.
Section 44 (1) (c)
63. The exemption under section 44 (1) (c) of the Act states that
requested information is exempt from disclosure if such would
constitute or be punishable as a contempt of court.
64. As noted in point 40 of this review Ms Tapui wil be subject to court
proceedings on 06 April 2010. Consequently the disclosure of any
information by UKBA pertaining to such might reasonably be seen to
constitute an inappropriate interference with these proceedings.
65. As the Contempt of Court Act 1981 and associated common law
prohibit the disclosure of material that would create a risk of prejudice
to imminent or pending proceedings, it is my determination that
disclosure to Mr Sittampalam of the material he has requested would
seen to stand in breach of such.
66. Consequently, on these grounds I am satisfied that the exemption at
section 44 (1) (c) of the Act is engaged.
67. As the exemption at section 44 (1) (c) of the Act is an absolute
exemption no public interest considerations apply.
Advice and assistance
68. Having considered the body of correspondence between UKBA and
Mr Sittampalam it is my determination that UKBA satisfactorily
discharged their obligations with regard to section 16 (1) and section
16 (2) of the Act.
69. Specifically, in their correspondence with Mr Sittampalam, UKBA are
noted to have complied with all relevant requirements of the
Secretary of State’s code of practice as outlined in section 45 of the
Act.
Conclusion
70. UKBA are noted to have failed to respond to the applicant’s FoI
request within the statutory limit of 20 working days. Accordingly,
UKBA are seen to stand in breach of section 10 (1) of the Act.
71. In addition, by failing to inform Mr Sittampalam within 20 working
days that additional time would be required to consider the
application of a qualified exemption to the requested material UKBA
are also seen to stand in breach of section 10 (3) of the Act.
72. However, the exemptions under section 30 (1) (b) and section 40 (2)
of the Act cited to Mr Sittampalam in the correspondence of 18
January 2010 are seen to have been correctly engaged at this point
in time. In addition the public interest test required under section 30
(1) (b) of the Act is seen to have been correctly conducted.
73. Accordingly as this review has outlined, UKBA are seen to have
correctly discharged their obligations under section 1 (1) (a) and
section 17 (1) (a), (b) and (c) of the Act.
74. Finally, with respect to points 4 and 43 of this review, it is noted that
the information initially requested by Mr Sittampalam is now seen to
be exempt from disclosure pursuant to the exemption under section
40 (2), as well as the additional exemptions under section 31 (1) (c)
and section 44 (1) (c) of the Act.
Annex A
Section 30 (1) (b)
Investigations and proceedings conducted by public authorities
(1) Information held by a public authority is exempt information if it has at any
time been held by the authority for the purposes of—
(b) any investigation which is conducted by the authority and in the
circumstances may lead to a decision by the authority to institute
criminal proceedings which the authority has power to conduct, or
Section 31 (1) (c)
Law enforcement
(1) Information which is not exempt information by virtue of section 30 is
exempt information if its disclosure under this Act would, or would be likely to,
prejudice—
(c) the administration of justice,
Section 40 (2)
Personal information
2) Any information to which a request for information relates is also exempt
information if—
(a) it constitutes personal data which do not fall within subsection (1),
and
(b) either the first or the second condition below is satisfied.
Section 44 (1) (c)
Prohibitions on disclosure
(1) Information is exempt information if its disclosure (otherwise than under
this Act) by the public authority holding it—
(c) would constitute or be punishable as a contempt of court.
Information Access Team Home Office
22/03/10
