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Tribunal Deadlines

Monday, February 13th, 2012 at 8:49 am Written by:

The law waits for no man, once it gets going. This is Part 3 where Part 1 was the first response. I forgot to drop Part 2 in the blog, but no one is probably interested.

According to the Directions ordered by the tribunal judge, I have to get this essay in by the 14th of February. Being as I am in California right now there is a good chance I would miss it by 8 hours. As you know, it’s unprofessional to hand anything in like this late. If you do, you have to send a begging letter to the Tribunal asking for an extension.

What’s even more unprofessional is handing in your Statement early, as I am doing, because that gives the other parties time to read it and rewrite their rebuttals to take account of it. I’d like to see them do that. I would have got this in three days ago if I hadn’t been stuck on the train or otherwise engaged in eating fancy steaks. I have had to reserve some slumber time to get this turned in.

– v –


1. This is my Written Submission in accordance with Section 9 of the 6 December 2011 Directions.

2. Since my 12 November 2011 reply to the Information Commissioner’s response and my 20 December 2011 reply to the Additional Party’s response I have received only the 1 February 2012 Open Witness Statement.

3. As neither the responses (which pre-dated the replies) nor the Open Witness Statement directly challenged or disputed the statements in my replies, there is no need to repeat their contents here. This Written Submission is therefore primarily a reply to the Open Witness Statement.

The Witness Statement
4. Following its introductory sections, paragraphs 11 to 15 of the Witness Statement set out the current regulations regarding the disclosure of EPCs. It is important to note that the regulations come as a consequence of a decision to enforce the determination to treat EPCs as personal data. In other words, the legal advice was procured for the dominant purpose of forming and amending the public regulations governing the register of EPCs. Whilst the public is legally bound to follow these regulations irrespective of what the legal advice contains, I would expect to have a right to know the basis and properness of the arguments developed by the legal professionals to justify the regulations, as would normally be the case had the regulations been debated in Parliament.

5. Paragraph 15 of the Witness Statement has been redacted, presumably to preserve the secrecy of the legal advice.

6. Paragraphs 16 to 20 of the Witness Statement explain that there have been two revisions of an original 2007 legal advice, in 2009 and 2010, due to inadequacies in each version. The Privacy Impact Assessment of 28 January 2011, included in the Open Bundle and also referenced in paragraph 30 of the Witness Statement, points to a further more complete over-haul of the legal advice.

7. The multiple times this advice has been sought provides the first possible explanation for the discrepancies relating to the authorship of the advice.

8. Paragraphs 21 to 26 of the Witness Statement provide an account of the 2010 consultation based on the 2010 version of the advice, which appeared to have determined that the EPCs constituted personal data.

9. Owing to the change in government, change in policy and evident change in legal advice, the January 2011 Privacy Impact Assessment reviewed the responses to the 2010 consultation even though the responses had been to a different set of questions (drafted on the basis of the more restrictive 2010 version of the advice that the EPCs were personal data for which there could be no option of disclosure).

10. Paragraphs 27 to 30 outline the liberalizing process that has been applied to the legal position which lead up to the 2011 Privacy Impact Assessment. However it does not clarify whether it was based on the 2010 version of the advice, or if that advice had been considered obsolete.

11. Paragraphs 31 to 32 outlined the handling of my FOI request without reference to the issues as to satisfying Section 1(a) of the Act wherein I would have expected to have been informed of the existence of information of the description specified – in particular the identity of the separate documents.

12. Paragraph 33 of the Witness Statement comes close to challenging my assertion in paragraph 11 of my 12 November 2011 reply to the Commissioner that LPP is waived due to a substantial disclosure of the advice. In particular, the witness disputes that the PIA I quoted from made any reference to the existence of legal advice. However, the tone of its language, citations of the EHCR and the Data Protection Act, the listing of the Data protection principles in Annex D of the consultation, and standard operating procedure were sufficient to lead me to believe that there must be a legal opinion underpinning the policy outlined. This supposition was confirmed in the response to my FOI request. Without access to the original legal advice documents I cannot be certain of the overlap. However, given the number of revisions that have been undertaken as result of predictable circumstances, the different versions of the advice are probably not very robust and complete.

13. Paragraph 33 also repeats the crucial statement from the PIA by stating “that whether or not address level data was personal data was ‘not clear cut’, but that a choice had been taken to treat it as such…” The reason this statement is crucial is that it is central to the purpose of my FOI request. Every single consultation document and policy proposal until now has pretty much assumed that the privacy status of EPCs could not be questioned because it was a matter of law. The government is perfectly entitled to receive legal advice and take what it believes is “by far the safest course of action” when it chooses its policies and writes regulations. However, there should always be as much clarity as possible in distinguishing what it chooses to do and what it is legally required to do, in order for the public to participate in a discussion about the policy within the appropriate framework.

14. Paragraph 34 goes on to outline the justification for the FOI Section 43 (Legal professional privilege) in general terms (including needlessly providing an argument against routine disclosure of all legal advice) — without dwelling on the specific aspects of the requested information, such as the fact that it relates to the interpretation of a public Act of Parliament and has nothing to do with litigation.

15. There is, however, evidence in the numerous reviews of the advice and radical shifts in policy that the requested advice has never been been particularly full and complete. All along I have pointed out its likely shortcomings in terms of the unexplained incompatibility between the handling of the EPC data and of other building related data held by the Land Registry. I have repeatedly requested completely not-sensitive evidence to prove the contrary (eg a section from the preamble of the advice stating that the lawyer has taken into consideration the practice of handling this other Land Registry-held data). These communications were routinely ignored.

16. If the purpose of confidentiality is to promote and assure the quality and robustness of the legal advice, then in this case it appears to have failed. In fact, with regards to advice of this nature, which is concerned only with the interpretation of the Data Protection Act for the purpose of forming regulations in the handling of a government database, and which was never intended to be used for any kind of litigation, publication would more likely lead to better quality advice because it could be subject to independent scrutiny and would not require a change of government to provide a fresh set of eyes.

17. Paragraph 37 of the Witness Statement confirms that in any event the requested advice is no longer relevant.

18. In my three replies (including this statement) I have provided several strong independent arguments favouring disclosure in relation to the public interest test. To read statements that I have not done so, without reference to them, is dissatisfying. I look forward to reading the other Written Statements.

13 February 2012

After this wings its way through we move on to Section 10 of the Directions:

Any submissions in reply may be lodged with the Tribunal and exchanged between the parties by 21 February 2012.

Let’s hope it’s something interesting, and not the usual boring “The Appellant has not, to my mind, provided any such argument so as to favour the release of the disputed material.”

1 Comment

  • 1. Anladine replies at 29th February 2012, 12:58 am :

    No, they’re not aiknsg people to practice law, they’re just allowing people to give suggetions to you. It’s not written in stone that you have to follow that advice and you have not paid for any services from the people who answer your questions. If your case got messed up it’s because you didn’t do enough homework to research all of your options, or else you had a crummy lawyer in the first place (if you had one). If you didn’t, the next time you’ll know enough that whenever you go into court you alwyas need a lawyer to represent you.

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