Dear All,
Thanks for the interesting and informative comments. The public interest, as understood and defined by the courts, has an important role in our DPA and FOIA work.
You will recall that in the UK supreme court’s ruling, they argued that the press had a vital role in serving the public interest by their duty to inform as well as our right to know. [See particularly paragraphs 32-40 http://www.supremecourt.gov.uk/docs/UKSC_2010_0166_Judgment.pdf The press act in the public interest by publishing information that satisfies the public’s right to know. The press act in the public interest when they publish information that informs the public (the common good) of matters affecting them.
Individuals, but also the press, have the right to know, which extends under FOI (and DPA) towards public sector organisations covered by the legislation. How far is the public’s right to know as expressed in the FOIA enhanced by the press? To be sure, the press use their most powerful public interest powers when they publish (this is Article 10) however, they are still pursuing the innate right to know based on the public interest to know, which allows them to act in. and define to an extent, the public interest.
My question is this, would the press, in their right to know (as expressing the public interest in an issue) be able to influence the public interest test which organisations use in deciding on applying an exemption? For example, there are exemptions under the DPA that allow personal information to be disclosed because it is in the public interest. Under the FOIA the qualified exemptions rely upon the public interest test. The public interest test, as set out by the ICO, suggests that what is of interest to the public is not necessarily enough to make the disclosure in the public interest. In stating this, they are repeating a long held belief. However, is that belief wrong or modified by the power granted by the court to the press to determine the public interest?
If the press have a way to shape the public interest by what they publish and by extension what they investigate (they have a duty to inform), can that then, as suggested by the Supreme Court’s ruling, (see for example p32-40 of the supreme court decision.) use their role in the public’s right to know and bring that to bear on the specific issue? Guardian Newspapers Ltd and Heather Brooke v the Information Commissioner and the British Broadcasting Corporation The Tribunal http://www.informationtribunal.gov.uk/DBFiles/Decision/i81/Guardian%20Brooke.pdf paragraph 34 made the argument that just because it is of interest to the public, it is not in the public interest.
How do we reconcile that view with the idea that the press are exercising a right to know as embodied by the public interest? At one level, we have the chicken and egg issue, is the public interested because the press have used the public interest to inform the public about it and thus it becomes in the public interest. Or, do we have an issue, which is assessed by an abstract (if malleable) standard of the public good? In other words, the press can divine the public interest in such matters that affect the public with diminishing degrees of public interest. We can see the public’s interest in the pursuit of corrupt public officials, issues and ideas that affect the public (safety, purse, or general well being) and less of a public interest in what an is less about a common good and more about a particular good that is what the “ordinary individual” had for breakfast. (Though they may publish this on their Twitter account. ☺)
I could put this crudely to say that if the press are asking it has an enhanced public interest because they are acting on the public’s interest rather than an individual who is only acting on their own interest. Here we see a potential (but not fatal) conflict with Grace Szucs v the Information Commissioner http://www.informationtribunal.gov.uk/DBFiles/Decision/i570/20110816%20%20Decision%20%20EA20110072.pdf
In which the tribunal argued, paragraph 54, that the disclosure may be of interest to the applicant did not make the disclosure in the public interest. This follows from paragraph 53 where the Tribunal noted that the number of people affected (per Mersey Tunnel) had to be a factor in determining the public interest.
To be sure, the Szucs decision would not be overturned, were the press to be the applicant. [The decision to withhold was upheld for many reasons]. However, we still face a challenge because the press are acting in the public interest in pursuing these questions and in doing so can (I would argue) have an influence on the outcome. In a sense, this must follow (I would argue logically) from the counter argument to Szucs in that the applicant becomes an important factor in determining the public interest.
One important caveat is that the press express their public interest power when publishing the information that will be in the public interest. (They also publish a lot of information that is of interest to the public). By contrast, the public organisation, express their public interest powers when they withhold information. They organisations do this on the basis they are acting in the public’s interest. Thus, the press can be seen as an “ordinary individual” in their request for information. However, I think that there is still an unexplored element to how the applicant especially one acting in the public interest (even if a private corporation) can influence the public interest test.
I will be interested to see how the public interest tests are reconciled or at least harmonized. I would imagine we would need to consider, at some point, whether the public interest changes depending on the forum and the context.
Best,
Lawrence
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