Hoyte v Civil Aviation Authority [2008] UKIT EA_2007

Information Tribunal Appeal Number: EA/2007/0101
Information Commissioner’s Ref: FS50148261

Heard at Field House, London, EC4 Decision Promulgated

On 11^th and 12^th February 2008 05 March 2008

BEFORE

CHAIRMAN

ANNABEL PILLING

and

LAY MEMBERS

JENNI THOMSON

ANDREW WHETNALL

Between

JOHN HOYTE

Appellant

And

INFORMATION COMMISSIONER

Respondent

And

THE CIVIL AVIATION AUTHORITY

Additional Party

Representation:

For the Appellant: John Hoyte

For the Respondent: James Boddy
For the Additional Party: Sarah Wilkinson

Decision

The Tribunal upholds the decision notice dated 5^th September 2007 and
dismisses the appeal.

Reasons for Decision

Introduction

1. This is an appeal by Mr. John Hoyte against a Decision Notice issued
by the Information Commissioner dated 5^th September 2007. The
Decision Notice relates to a request for information made by Mr. Hoyte
to the Civil Aviation Authority (the ‘CAA’) under the Freedom of
Information Act 2000 (‘FOIA’).

Background

2. Mr. Hoyte is a pilot with very considerable experience who is at present
retired from flying on medical grounds. He considers, and has some
medical evidence in support of this, that he suffered from exposure to
contaminated air while flying. On 29^th August 2004, Mr. Hoyte decided
not to operate as First Officer on a flight. He submitted an Air Safety
Report (‘ASR’) to his airline operator (the ‘operator’) setting out the
factors that had led him to make that decision (these factors are set out
at paragraph 63 below). Mr. Hoyte also later reported the incident to
the CAA, the UK’s independent aviation regulator. The CAA operate a
Mandatory Occurrence Reporting (‘MOR’) Scheme, to ensure the CAA
is advised of hazardous or potentially hazardous incidents and defects,
to ensure that knowledge of these occurrences is disseminated so that
lessons can be learnt from them and to enable an assessment to be
made by those concerned of the safety implications of each and similar
occurrences so that they may take any necessary action. Although the

operator did not report the matter to the CAA as an MOR, the incident
was treated as an MOR by the CAA after Mr. Hoyte reported it.

3. The CAA instigated an investigation into the MOR and a Closure
Report was provided by the operator. It is this Closure Report that is
the subject of a request for information under the FOIA (the ‘disputed
information’)

4. The CAA completed its investigation and notified Mr. Hoyte of the
outcome in some detail in a letter dated 10^th January 2005.
Correspondence between the parties continued until August 2006
when the request for the disputed information was made.

5. The CAA did not supply the disputed information on the basis that it
was exempt information under section 44 of the FOIA, as its disclosure
was prohibited by section 23 of the Civil Aviation Act 1982 (the ‘CAA
1982’).

6. Although Mr. Hoyte received some further information directly from the
operator in October 2006, he has not had sight of the disputed
information. Mr. Hoyte believes that the disputed information contains
information about the issue of contaminated air on aircraft either
generally, or with specific reference to himself.

The request for information

7. By letter dated 30^th August 2006, Mr. Hoyte made a request for
information to the CAA:

I would be very grateful if you would provide me with a copy of
the final report of the operator to the CAA of the 29^th August
2004 MOR incident which you mentioned in the last paragraph
of your letter [of 23^rd August 2004]. This is important to me so
that I can be made fully aware of any final conclusions drawn
concerning the incident.

8. The CAA responded on 14^th September 2006, declining to provide the
disputed information and stating that the information was exempt from
disclosure under section 44 of the FOIA, as it was prohibited by virtue
of section 23 of the CAA 1982.

9. Mr. Hoyte requested an internal review on 1^st October 2006. The
internal review upheld the original decision to withhold the information
on the grounds that it was exempt from disclosure under section 44 of
the FOIA. The CAA confirmed that the disputed information had been
obtained in accordance with Article 117(1)(ii) of the Air Navigation
Order 2000 (the ‘ANO 2000’) and that section 23 of the CAA 1982
prohibited disclosure of such information. The outcome of the internal
review was communicated to Mr. Hoyte on 27^th October 2006.

The complaint to the Information Commissioner

10. Mr. Hoyte contacted the Information Commissioner on 23^rd January
2007 to complain that the CAA had not made it possible for him or his
MP to see the results of the MOR. In his complaint, Mr. Hoyte
indicated that information possibly linked to Aerotoxic Syndrome,
resulting from being exposed to contaminated air on aircraft, was being
carefully kept from politicians charged with acting on such information.

11. The Information Commissioner assigned the case to a Complaints
Officer. That Complaints Officer wrote to Mr. Hoyte on 12^th July 2007
to indicate that a Decision Notice had been issued recently in a similar
case involving the CAA which dealt with the same exemption under the
FOIA and the same prohibition on disclosure contained in section 23 of
the CAA 1982. Mr. Hoyte was told that the Complaints Officer would
come to the same conclusion in the present case and any Decision
Notice would reflect the Decision Notice in the other case. Mr. Hoyte
requested a Decision Notice be issued, although he did not accept any
similarity with the other case. He indicated that there was a conflict
between the CAA and other groups as to whether contaminated air

from aircraft is capable of causing long-term ill health in crew and
passengers. He added:

Ultimately the truth lies in reports such as the one I have been
trying to secure for nearly a year now. The fact that they are
unwilling to hand it over merely confirms that it contains very
inconvenient information, which they would rather not admit to.

12. The Complaints Officer did then contact the CAA and investigated the
matter further.

13. In the Decision Notice dated 5^th September 2007, the Information
Commissioner concluded that the CAA had dealt with the request for
information in accordance with the FOIA and did not require any steps
to be taken.

The appeal to the Tribunal

14. Mr. Hoyte appealed to the Tribunal on 14^th September 2007.

15. The grounds of appeal can be summarised as follows:

1) the disputed information may contain information which might be
relevant to the debate surrounding the issue of contaminated air
in aircraft;

2) the CAA are deliberately preventing the flow of serious safety
related information on the subject of contaminated air in aircraft.

16. The Tribunal joined the CAA as an additional party.

17. The appeal has been determined after a hearing at which some
evidence was called and oral submissions, supplementing written
submissions, were made. We were provided with an agreed bundle of
documents, although, regrettably, some additional documents were
added to the bundle at a very late stage, during the hearing.

18. In addition, the Tribunal was provided with a copy of the disputed
information. This was not made available to Mr. Hoyte, as to disclose it
to him would defeat the purpose of this appeal. It was necessary to
refer to the disputed information on two occasions during the hearing
and on each occasion this was dealt with in a private session at which
Mr. Hoyte was not a party.

19. Although the Tribunal may not refer to every document in this Decision,
we have considered all the material placed before us.

The Powers of the Tribunal

20. The Tribunal’s powers in relation to appeals under section 57 of the
FOIA are set out in section 58 of the FOIA, as follows:

(1) If on an appeal under section 57 the Tribunal considers-
(a) that the notice against which the appeal is brought is
not in accordance with the law, or

(b) to the extent that the notice involved an exercise of
discretion by the Commissioner, that he ought to have
exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such
other notice as could have been served by the
Commissioner; and in any other case the Tribunal
shall dismiss the appeal.

(2) On such an appeal, the Tribunal may review any finding of
fact on which the notice in question was based.

21. The starting point for the Tribunal is the Decision Notice of the
Commissioner but the Tribunal also receives and hears evidence,

which is not limited to the material that was before the Commissioner.
The Tribunal, having considered the evidence (and it is not bound by
strict rules of evidence), may make different findings of fact from the
Commissioner and consider the Decision Notice is not in accordance
with the law because of those different facts. Nevertheless, if the facts
are not in dispute, the Tribunal must consider whether the FOIA has
been applied correctly. If the facts are decided differently by the
Tribunal, or the Tribunal comes to a different conclusion based on the
same facts, that will involve a finding that the Decision Notice was not
in accordance with the law.

22. The question of whether the exemption in section 44 of the FOIA is
engaged, that is, whether disclosure is prohibited by section 23 of the
CAA 1982, is a question of law based upon the analysis of the facts.
This is not a case where the Commissioner was required to exercise
his discretion.

The questions for the Tribunal

23. The Tribunal has concluded that the relevant issues in this appeal are
as follows:

1) What is the disputed information?

2) Is disclosure of that disputed information prohibited by any
enactment so that the exemption provided by section 44 of the
FOIA is engaged?

3) If so, are there any exceptions to that prohibition?

4) In so far as any exception provided the CAA with discretion to
disclose the disputed information, was the decision not to
exercise that discretion Wednesbury irrational or otherwise
unlawful?

5) Would a decision not to disclose breach any of Mr. Hoyte’s
human rights as protected by the Human Rights Act 2000?

24. As a preliminary issue, it was necessary to clarify exactly what
amounted to the disputed information. This was done in a private
session in the absence of Mr. Hoyte. During the hearing, we also
clarified with Mr. Hoyte what document he had sought initially and was
still seeking now. We are satisfied that the disputed information is the
Closure Report by the operator provided to the CAA between 7^th and
10^th January 2005. (It was not possible to put an exact date on when
the Closure Report was made or provided.)

Legal submissions and analysis

25. A public authority need not comply with the duty to disclose under
section 1 of the FOIA where any of the absolute exemptions provided
for by FOIA apply. Section 44 of the FOIA is an absolute exemption.
This means that the information is not disclosable regardless of any
public interest there may be in disclosure.

26. Section 44 of the FOIA provides as follows:

(1) Information is exempt information if its disclosure (otherwise
than under this Act) by the public authority holding it-
(a) is prohibited by or under any enactment,

(b) is incompatible with any Community obligation, or

(c) would constitute or be punishable as a contempt of court.

(2) The duty to confirm or deny does not arise if the confirmation or
denial that would have to be given to comply with section 1(1)(a)
would (apart from this Act) fall within any of paragraphs (a) to (c) of
subsection (1).

Is disclosure of the disputed information prohibited by any enactment so

that the exemption provided by section 44 of the FOIA is engaged?

27. Section 23 of the CAA 1982 contains a general prohibition on
disclosure of information by the CAA:

23(1) Subject to subsection (4) below, no information which relates
to a particular person and has been furnished to the CAA in
pursuance of any provision of this Act to which this section applies
or of an Air Navigation Order shall be disclosed by the CAA, or a
member or employee of the CAA unless

(a) the person aforesaid has consented in writing to disclosure
of the information; or

(b) the CAA, after affording that person an opportunity to make
representations about the information and considering any
representation then made by that person about it,
determines that the information may be disclosed; or

(c) that person is an individual who is dead, or is a body
corporate that has ceased to exist or, whether an individual
or a body corporate, cannot be found after all reasonable
inquiries have been made, and the CAA determines that the
information may be disclosed; or

(d) the CAA determines that the information is of the same kind
as other information as respects which it has made a
determination in pursuance of paragraph (b) or (c) above.

28. Section 23(5) of the CAA 1982 makes disclosure in contravention of
section 23(1) a criminal offence with a maximum liability of a fine
and/or imprisonment for a term not exceeding two years.

29. At the time when the MOR was made in August 2004, the ANO 2000
was in force. (It has now been revoked but is substantially reproduced
in Article 142 of the ANO 2005.)

30. Article 117(1) of the ANO 2000 provided that certain persons closely
connected to flying, manufacturing, maintenance or air traffic control of

aircraft operated in the UK must make a report to the CAA of any
reportable occurrence as defined in Article 117(2) of the ANO 2000.
That report is an MOR.

31. Reportable occurrences are defined in Article 117(2) of the ANO 2000
as follows:

(a)(i) any incident relating to such an aircraft or any defect in or
malfunctioning of such an aircraft or any part or equipment of
such an aircraft, being an incident, malfunctioning or defect
endangering, or which if not corrected would endanger, the
aircraft, its occupants or any other person; and

(ii) any defect in or malfunctioning of any facility on the ground
used or intended to be used for purposes of or in connection
with the operation of such aircraft, being a defect or
malfunctioning endangering, or which if not corrected would
endanger, such an aircraft or its occupants.

(b) any accident or serious incident notified to the Chief
Inspector of Air Accidents in pursuance of regulations made
under section 75 of the Civil Aviation Act 1982 shall not
constitute a reportable occurrence for the purposes of this
article.

32. Article 117(1)(ii) provided that any person identified in Article 117(1)
should:

make a report for the CAA, within such time, by such means,
and containing such information as the CAA may specify in a
notice in writing served upon him, being information which is in
his possession or control and which relates to a reportable
occurrence which has been reported by him or by another
person to the CAA in accordance with this article.

33. We heard evidence from Mr. Adrian Sayce, Head of the Safety
Investigation and Data Department (‘SIDD’) of the CAA’s Safety
Regulation Group. SIDD operates the UK MOR Scheme. The CAA
receives many voluntary reports from aviation sectors that are not
required to report but do so and are treated as MORs.

34. Our attention was drawn to the ANO 2000, to Directive 2003/42/EC
(the ‘EC Directive’) occurrence reporting in civil aviation, Regulation 14
of the Air Navigation (General) Regulations 2006 and the relevant
provisions of JAR-OPS which further describe the way in which the
MOR scheme works.

35. The ANO 2000 and the EC Directive emphasise the importance of both
dissemination and confidentiality of data collected under the Scheme.

36. Article 7 of the EC Directive is titled “Dissemination of information” and
the relevant part is as follows:

1. Any entity entrusted with regulating civil aviation safety or with
investigating civil aviation accidents and incidents within the
Community shall have access to information on occurrences
collected and exchanged in accordance with Articles 5 and 6 to
enable it to draw the safety lessons from the repeated
occurrences.

37. Under Article 7, measures for the dissemination to interested parties
shall be based on the need

i) to provide persons and organisations with the

information they need to improve civil aviation
safety,

ii) to limit the dissemination of information to what is
strictly required for the purpose of its users, in
order to ensure appropriate confidentiality of that
information.

38. Article 8 of the EC Directive is titled “Protection of information” and the
relevant part is as follows:

1. Member States shall, according to their national legislation,
take necessary measures to ensure appropriate confidentiality
of the information received by them pursuant to Articles 6(1) and
7(1). They shall use this information solely for the objective of
this Directive¹.

39. Where necessary, safety information is disseminated to those involved
in flight safety to assist in the prevention of future accidents and
incidents. To establish what is commonly called a ‘no-blame’ culture,
the CAA applies a principle of confidentiality whereby it does not
disclose the name of a person submitting a report or of a person to
whom it relates, unless required to do so by law or unless, in either
case, the person concerned authorises disclosure.

40. Mr. Sayce’s evidence was to the effect that the disclosure of the name
of an individual or organisation without prior consent and the
subsequent use of that information for non-safety purposes can have a
seriously damaging impact on the operation of the MOR scheme. The
United Kingdom MOR scheme was the model for the EC Directive. Mr.
Sayce said in his witness statement:

“Not only would it deter reporters from reporting occurrences,
thereby denying the UK CAA and the UK public at large the
safety benefits of such a mature reporting scheme, but it could
also send out a very negative message to other States that are
attempting to establish such a reporting scheme.”

41. As part of the duty to disseminate flight safety information, the CAA
provides monthly listings. These are provided to all operators who
provide reports to the CAA and are available, at a charge, to anyone
with an involvement in flight safety. About 600-700 reports are listed

¹ The sole objective is set out in Article 1 of the EC Directive and is the prevention of
accidents and incidents and not to attribute blame or liability.

each month and are dealt with by way of a very brief summary of the
incident and results of the investigation when known. Often the
monthly listings will be the only confirmation that an MOR was received
and the only notification of the results of the investigation.

42. Although the operator did not report the ASR by Mr. Hoyte to the CAA
as an MOR, it is accepted by all parties that it was an MOR and, once
reported to the CAA by Mr. Hoyte himself, it was treated as an MOR.
The disputed information was provided to the CAA by the operator as
part of the investigation into the MOR.

43. We are satisfied that the disputed information was a report for the
purposes of Article 117(1)(ii) of the ANO 2000 and was therefore
provided to the CAA in pursuance of a provision of an Air Navigation
Order. The disputed information therefore falls within the category of
material prohibited from disclosure by section 23 of the CAA 1982.

Does any exception to the prohibition on disclosure apply?

44. Section 23(1) of the CAA 1982 prohibits disclosure of information
unless one of the exceptions in section 23(1)(a)-(d) or section 23(4)
applies. These exceptions do not impose a duty on the CAA to seek
consent to disclose or to release the information without consent. The
decision is left within the discretion of the CAA as to whether to
disclose information which falls within this section. The discretion in
section 23 of the CAA 1982 is not defined or fettered in any way,
simply, if the CAA “determines the information may be disclosed.”

45. Section 23(1) is set out at paragraph 27 above. Section 23(4) provides
as follows:

(4)Nothing in subsection (1) above prohibits the disclosure of
any information

(a) by the CAA or a member or employee of the CAA to
the Secretary of State or an officer of his, or, with the

consent of the Secretary of State, to an international
organisation of which the United Kingdom is a member;

(b) by an officer of the Secretary of State to the CAA or a
member or employee of the CAA or to such an
organisation or, in accordance with directions given by
the Secretary of State-
(i) to an officer of any government department; or

(ii) in connection with negotiations conducted by
officers of the Secretary of State with
representatives of the government of any country
or territory outside the United Kingdom; or

(iii) in connection with the discharge of any
obligation of the United Kingdom under
international arrangements;

(c) to a person to whom the information in question is
required to be disclosed by regulations made in
pursuance of section 7(2) above;

(d) in pursuance of section 67(2) or (4) below;

(e)

(f) with a view to the institution of, or otherwise for
the purposes of, any criminal proceedings arising
out of any enactment relating to civil aviation or for
the purposes of any investigation undertaken in
pursuance of regulations made by virtue of section
75 below.

46. It was agreed between the parties that the only possibly relevant
exceptions were those provided for in section 23(1)(b) and section
23(4)(c) of the CAA 1982.

47. In respect of section 23(4)(c) of the CAA 1982, the Civil Aviation
Regulations 1991 were made in pursuance of section 7(2) of the CAA
1982. Regulation 9 provides for the dissemination of reports of
reportable occurrences.

(9) The Authority shall make available, upon payment to it of any
applicable charge under section 11 of the Act, reports of
reportable occurrences or a summary of such reports, to any
person who is:

(a) the operator or member of the flight crew of any
aircraft;

(b) engaged in the design, manufacture, repair,
maintenance or overhaul of aircraft, or of parts or
equipment therefore;

(bb) the provider of an air traffic control service;

(c) the aeronautical authority of a country other than the
United Kingdom, or the representative in the United
Kingdom of such an authority;

(d) engaged in writing about civil aviation for publication
in any newspaper, periodical, book or pamphlet;

(e) engaged in preparing a programme about civil
aviation for television or radio;

(f) engaged in the study of civil aviation for any academic
purpose; or

(g) any other person whose functions include the
furthering of the safety of civil aviation;

Provided that the Authority shall not be required to make available
any report or summary thereof to any person if it is satisfied that to
do so will not further the safety of civil aviation.

48. Mr. Hoyte submits that he is a person falling within, at least, Regulation
9(d) and 9(g). The CAA disagrees and submits that he does not fall
within any of the categories of person in Regulation 9.

49. We consider the categories in Regulation 9 are defined widely and are
designed to encompass all those with a legitimate interest in reports of
reportable occurrences. We are satisfied that because he was a
member of the flight crew at the time of the MOR, Mr. Hoyte falls within
the category defined in Regulation 9(a). We are also satisfied that
because of his campaigning about the issue of contaminated air, Mr.
Hoyte also falls within the category defined in Regulation 9(d) and (g).
We are therefore satisfied that Mr. Hoyte is a person to whom the
exception within section 23(4)(c) of the CAA 1982 to the prohibition of
disclosure under section 23 (1) of the CAA 1982 applies.

50. The exception to the prohibition of disclosure under section 23(4)(c)
and Regulation 9 of the Civil Aviation Regulations 1991 is also subject
to a discretionary power of disclosure by the CAA: the CAA is not
required to disclose information if it is satisfied that to do so will not
further the safety of civil aviation.

51. Although, as indicated above, the discretion in relation to section 23(1)
of the CAA 1982 is not defined, we heard evidence and accept that the
CAA takes into account aviation safety in exercising its discretionary
power of disclosure under section 23(1)(b) of the CAA 1982.

52. The “test” for exercising its discretionary power of disclosure is
therefore the same for both section 23(1)(b) and section 23(4)(c) of the
CAA 1982.

In so far as any exception provided the CAA with discretion to disclose the
disputed information, was the decision not to exercise that discretion
Wednesbury irrational or otherwise unlawful?

53. Having found that there is a statutory prohibition on disclosure, and that
there are exceptions to that prohibition that are governed by an

exercise of discretion, the question for us is whether the CAA exercised
its discretion not to disclose the disputed information unlawfully in the
sense of Wednesbury unreasonableness, irrationality or perversity.

54. The CAA has no formal or written policy on how the exercise of
discretion should be applied. We heard evidence from Mr. Barrie
Pilcher, who has been one of the CAA’s two Appeals Managers for the
purposes of the FOIA since June 2005. He dealt with the internal
review into the refusal to disclose the disputed information to Mr. Hoyte
and also responded to questions from the Complaints Manager during
the investigation by the Information Commissioner.

55. Although Mr. Pilcher did not contact the operator himself to ascertain
whether the operator would consent to the disclosure of the disputed
information, we are satisfied that the operator had been contacted in
August 2006 and had indicated that it did not so consent. No reasons
for withholding consent were given, however, there is no obligation for
the operator to provide such reasons or for the CAA to seek them. The
only obligation under section 23(1)(b) of the CAA 1982 is for the CAA
to afford an opportunity to the relevant person (or body corporate) to
make representations and to consider any representations made as a
result.

56. Mr. Pilcher’s evidence was that, as a general rule, the CAA would only
consider releasing the information over the objection of the person who
supplied it if the CAA believed that it would be in the interests of safety
to do so. Mr. Hoyte submits that because he is either the person who
supplied the MOR or is the subject of the MOR, it is his consent that is
relevant. The CAA submits that the disputed information was supplied
by the operator and it is that consent that is needed. We agree with
that submission: although the MOR was reported to the CAA by Mr.
Hoyte and although Mr. Hoyte is one of the subjects of the MOR, along
with the operator and other flight crew mentioned, it is the operator who
provided the disputed information and it is the consent of the person
who supplied the information that is needed.

57. When considering the exercise of discretion, the CAA took a number of
factors into account:

(i) The MOR scheme’s objectives (to ensure the CAA is
informed of hazardous or potentially hazardous incidents
and defects, to disseminate safety information and
prevent further accidents/incidents).

(ii) That to establish a “no blame” culture, the CAA applies a
principle of confidentiality. This also encourages the
making of voluntary reports from aviation sectors that are
not required to make an MOR.

(iii) That disclosure under section 23 of the CAA 1982 has
been in operation for almost 20 years before the
introduction of the FOIA and therefore the CAA are well
practised in the exercise of the discretion contained
therein.

(iv) The importance of maintaining trust in the aviation
industry which would be eroded if the CAA disclosed
information without consent. The CAA chairman gave an
assurance that confidentiality would be respected in all
cases except “where there is dereliction of duty
amounting to gross negligence”.

(v) Undermining confidentiality could send a negative
message to other European Member States that are
attempting to establish a similar scheme as required by
the EC Directive.

(vi) Underreporting of MORs is a significant problem. Mr.
Hoyte did not dispute this, although in his view this was
because operators chose to conceal matters that should
be reported and individuals, as opposed to operators, had
little faith in the CAA being an independent body.

58. Mr Hoyte submits that the decision not to exercise discretion to
disclose was irrational or unlawful. He submits that the CAA should
have taken into account the fact that he had been corresponding with
the CAA about contaminated air and should have therefore, even
though disputed information did not refer directly or indirectly to that
topic, have considered that its disclosure was relevant to a debate that
is intended to further safety of civil aviation. Mr. Pilcher, although he
has worked for the CAA since 1976, did not know much about the
issue of contaminated air in aircraft at the time he dealt with the internal
review of the refusal to supply the disputed information. He told the
Tribunal that he had learnt about the topic during the preparation for
this Appeal.

59. As he was unaware of the issue of contaminated air, it was not
something that he took into account when reviewing the exercise of
discretion to disclose the disputed information. Although he accepted
that the issue of contaminated air is part of aviation safety, he
submitted that there was still nothing contained in the disputed
information that has a positive or negative impact on air safety.

60. Mr. Hoyte submits that although he did not mention contaminated air
himself in the ASR, it should have been apparent, to both the operator
and the CAA, that it was a relevant issue because of

(i) his correspondence from earlier in 2006 with the Group
Director of Safety Regulation in the CAA;

(ii) the way the decision on 29^th August 2004 was made; and

(iii) the language he used in the ASR to describe the events
of 29^th August 2004.

61. Mr. Hoyte himself was unaware of the issue of contaminated air until
2006 when a colleague mentioned “aerotoxic syndrome” and he
received the results of tests on samples of his blood and fat.

62. We have seen the ASR and Mr. Hoyte was cross-examined on behalf
of the CAA in some detail about the matters set out therein. It is
necessary to go into some detail about the content of that ASR as it
was this document that formed the MOR and the basis of the
investigation by the CAA.

63. Mr. Hoyte had been rostered initially on standby duty on 29^th August
2004. He was due to work until 1700. There were late changes to his
roster which meant he would fly an extra sector and his working hours
would therefore be extended to 2130. This extension interfered with
personal arrangements. There was a late change of captain; the new
captain was someone Mr. Hoyte had not flown with before and who
had been involved in a “going off the runway incident”, which was not
his fault, about six years ago. The new captain had not flown to the
destination airfield previously; this was a Category B airfield which
meant there would be additional challenges to landing the aircraft and
Mr. Hoyte himself had experienced difficulties landing there. The
weather at the destination airfield was predicted to be thunderstorms
and Mr. Hoyte was concerned the new captain had altered, without
seeming aware of that fact and without reference to himself, a decision
with regard to the amount of fuel to be carried, which had been made
by the previous captain and Mr. Hoyte. Mr. Hoyte was also concerned
about changes to and the experience of other crew members. The
flight was already late and the operator’s Dispatcher was on the
aircraft, reminding them of the need for the flight to leave and that the
passengers were already on their way to board the aircraft. As a result
of all these factors, Mr. Hoyte felt stressed, agitated and resented the
fact that he should regularly be put in this sort of avoidable position.
He decided not to fly.

64. Mr. Hoyte accepted that he did not say that he was unable to
concentrate, or that he felt light-headed, but submits that he described
fatigue and did not know enough about the issue of contaminated air to
identify the symptoms he was exhibiting at that time.

65. Although Mr. Hoyte did not raise the issue of contaminated air in the
ASR, the Tribunal were shown a medical report dated 6^th September
2004 prepared by the Senior Medical Officer (the ‘SMO’) at the CAA in
which the issue of organo-phosphate poisoning is raised. Mr. Hoyte
had told the SMO that he had been flying a lot at present which had
resulted in him becoming fatigued and having a poor short term
memory. According to the SMO’s report, Mr. Hoyte wondered whether
he had developed chronic organo-phosphate poisoning due to his crop
spraying activities in the 1980s and operating the BAE 146. Mr. Hoyte
told us that he did not mention the BAE 146 at this consultation.
Although the operator and the CAA would have had access to this
report around this time, the issue was not further addressed or referred
to.

66. The CAA investigated the ASR as an MOR. By letter dated 10^thJanuary 2005, the CAA Flight Operations Inspector sets out, in some
detail, the conclusions of the CAA’s investigation into the MOR. The
letter of 10^th January 2005 does address all the matters raised by Mr.
Hoyte in his ASR but Mr. Hoyte remains convinced that the disputed
information refers to something else, namely the issue of contaminated
air. He also believes that, even though the date the CAA received the
disputed information from the operator was January 2005, the disputed
information might contain a wider appraisal of contaminated air issues,
even though he had himself first become aware of them only after the
disputed information was created. Having seen the disputed
information, we are able to say that the information provided in the
letter of 10^th January 2005 is considerably more detailed than the
disputed information from the operator. We are also able to say that
there is nothing in the disputed information that directly or indirectly
refers to the issue of contaminated air or ogano-phosphate poisoning.

67. The question for us therefore is whether the CAA exercised its
discretion not to disclose the disputed information unlawfully in the
sense of Wednesbury unreasonableness, irrationality or perversity.

That is, did the CAA exercise its discretion in a way so unreasonable
that no reasonable public authority could have exercised it that way,
did it take into account irrelevant considerations or fail to take into
account relevant considerations, or was the decision otherwise
unlawful or irrational?

68. The CAA has been appointed to regulate the aviation industry and is a
specialist body with expertise in that industry, in particular with
expertise in judging what factors are relevant to civil aviation safety and
balancing competing aspects of that safety. While we are not bound to
follow, without challenge, all decisions of such a body, we must
acknowledge the expertise that such a body possesses that we, as a
Tribunal, do not and cannot possess.

69. Both those dealing with the initial request for the disputed information
and Mr. Pilcher dealing with the internal review were apparently
unaware of the correspondence between the CAA and Mr. Hoyte with
regard to the issue of contaminated air. Although it is clear from the
evidence and background information that there has been a wider
awareness of the issue of contaminated air in aircraft since 2006, we
are wary of attempting to put ourselves, in 2008, in the place of CAA
making a decision in 2006.

70. In any event, that issue was not referred to directly or indirectly in the
disputed information. It could not, therefore, be regarded as a relevant
consideration that a reasonable public authority should have taken into
account. The CAA was not acting unreasonably in the sense of
Wednesbury unreasonableness, irrationality or perversity by failing to
take it into account when exercising their discretion.

71. Mr. Hoyte submits that account should be taken of the fact that the
operator published on its internal website a report of his ASR in which
he was clearly identified. This understandably caused him
considerable stress and anxiety. He argues that as his confidentiality
was not protected and respected by the operators, the CAA should not

have given such weight to protecting and respecting the confidentiality
of the operator with regard to the disclosure of the disputed
information. We are satisfied that the CAA are not condoning that
decision by considering the confidentiality argument, but have properly
taken account of the wider concern of confidentiality in information
provided under the MOR scheme as a whole.

72. The test for us is not whether we would exercise discretion in the
same way nor whether we approve of the way in which the CAA
exercised its discretion, but whether the discretion was properly
exercised: was the decision a reasonable one which the CAA was
entitled to make. We are satisfied that the CAA exercised its discretion
in a way it was entitled to, taking into account all relevant
considerations and weighing up the competing interests as far as
confidentiality and the safety of civil aviation are concerned.

73. The Information Commissioner is only entitled to question the exercise
of discretion where it appeared to be Wednesbury irrational or
otherwise unlawful. We are satisfied that there is no basis on the
evidence to suggest that is the case here. We would comment,
however, that we would have expected the Information Commissioner
to have sight of the disputed information during the investigation and
were given no compelling explanation about why this did not happen.

74. Mr. Hoyte submits that because the public interest in the issue of
contaminated air is so great, we should ignore the legislative
prohibition and order disclosure. We cannot do that. We are bound to
apply the legislation as enacted by Parliament. Mr. Hoyte’s submission
is predicated by a belief that the issue of contaminated air is raised in
the disputed information and we can assure him, again, that it is not
referred to, either directly or indirectly. Even if it was, we are still bound
by the legislation. The public interest balancing exercise we would
carry out in relation to a qualified exemption under the FOIA has no
application in relation to an absolute exemption.

75. We note that under Regulation 9 of the Civil Aviation Regulations 1991,
the CAA is obliged to make available “reports of reportable
occurrences or a summary of such reports”. Although the CAA submits
that Mr. Hoyte does not fall within one of the categories of person to
whom such reports shall be made available without the CAA falling foul
of the prohibition on disclosure under section 23 of the CAA 1982, it did
submit that, in any event, the letter of 10^th January 2005 amounts to a
summary of a report of a reportable occurrence and that, therefore, the
CAA has fulfilled any obligation to disclose in accordance with the
legislation regardless of the decisions made by the CAA and the
conclusion drawn by us as outlined above.

Would a decision not to disclose the disputed information breach any of Mr.
Hoyte’s human rights as protected by the Human Rights Act 2000?

76. During the hearing, Mr. Hoyte provided a lengthy skeleton argument to
the Tribunal. This was not in accordance with the Directions and the
other parties objected to the Tribunal considering it. We decided that,
as Mr. Hoyte was unrepresented and had, in the days immediately
preceding the hearing, received some assistance from a legally trained
acquaintance, it would be unfair to exclude it from our consideration.
We gave the other parties some additional time to prepare their
response as new issues concerning the Human Rights Act 2000 (the
‘HRA’) had been raised for the first time. We are particularly grateful
for the detailed assistance given to us by Miss Wilkinson for the CAA.

77. Mr. Hoyte submits that he is a victim for the purposes of the HRA and
that non-disclosure of the disputed information breaches:

i) Article 2 – right to life;

ii) Article 6(1) – right to a fair trial;

iii) Article 8 – right to private and family life; and

iv) Article 10 – right to freedom of expression.

78. Mr. Hoyte submits that his rights will be violated because he will not be
able to use the disputed information by giving it as evidence before
Parliament and because it may contain information relevant to the
issue of contaminated air which affects his family, his health and,
ultimately, his life.

79. Because this part of his submissions had been prepared by a legally
trained acquaintance, Mr. Hoyte was unable to add to the submissions
orally. It was clear the submissions had been written without a great
deal of preparation and some thirteen decisions from the European
Court of Human Rights were referred to but not copied and supplied to
the Tribunal.

80. We accept that we must act in a way that is compatible with the rights
protected by the HRA and must examine whether the refusal by the
CAA to exercise its discretion in favour of disclosure violated Mr.
Hoyte’s rights.

Article 2 – right to life

81. Article 2 in its usual guise of protecting life is not engaged. Mr. Hoyte
relies on a positive obligation that was imposed on the police in the
case of Osman v UK (1999) EHRLR 228 to take steps to protect life
despite them having previously had immunity from gross negligence
under the Police Rules and that the CAA, by analogy, cannot rely on
their ‘immunity’ not to disclose under section 23 of the CAA 1982.

82. Section 23 of the CAA 1982 is not an ‘immunity’ from prosecution
comparable with that is the case of Osman. It is a statutory bar on
disclosure, save in limited circumstances, which carries a criminal
sanction. We agree with the CAA that the analogy put forward by Mr.
Hoyte does not work.

83. Mr. Hoyte also submits that because he believes the disputed
information contains relevant information about the issue of
contaminated air and with particular reference to himself, there is a

breach of his right to life. We have already indicated, several times in
the course of the hearing and in this Decision, that the disputed
information does not refer to the issue of contaminated air directly or
indirectly. We do not consider that non-disclosure of the disputed
information would breach Mr. Hoyte’s right to life.

Article 6(1) – right to a fair trial

84. At the time of his repeated requests to see the disputed information,
Mr. Hoyte intended to give evidence on the issue of contaminated air,
to the House of Lords Select Committee on Science and Technology
and/or the independent Committee on Toxicity of Chemicals in Food
Consumer Products and the Environment (COT). As mentioned
above, he believes that the disputed information contains relevant
information about this issue. He submits that non-disclosure of the
disputed information breaches his right to a fair hearing.

85. The question of whether Mr. Hoyte’s right to a fair trial is breached by
such a hearing in the absence of the disputed information will be a
matter for that body and is not within our jurisdiction.

86. In any event, the future presentation of evidence before a
parliamentary committee is not the same as giving evidence before a
civil court. A parliamentary committee receiving evidence from the
public is not a court or a tribunal determining civil rights within the
meaning of Article 6(1) and that article would not, in our opinion, be
engaged.

87. We note that Mr. Hoyte appeared to be of the opinion that both the
House of Lords Select Committee and COT had concluded their
investigations into the issue of contaminated air on aircraft and any
possible link with organo-phosphate poisoning and that any further
evidence he might have been given through this appeal would have
come too late to be of any benefit. While COT has concluded that the
link is unproven, it also considered the matter worthy of further
investigation. The House of Lords Select Committee published a

report in December 2007 on “Air Travel and Health”. In that report they
indicate support of COT’s conclusion; however they make a number of
recommendations for further research to be taken forward as a high
priority. There is therefore further opportunity for evidence to be placed
before both bodies.

Article 8 – right to private and family life

88. The CAA agrees with Mr. Hoyte who submits that the issue of
contaminated air has had a significant impact on him and his family.
While the broader issues relating to contaminated air may impact on
this right, the decision as made by the CAA with regard to the exercise
of discretion under section 23 of the CAA 1982 does not.

89. Article 8 is not engaged by the non-disclosure of the disputed
information which Mr. Hoyte considers relates to the issue of
contaminated air resulting in him not being able to present evidence to
a parliamentary committee.

Article 10 – right to freedom of expression

90. Mr. Hoyte submits that his right under Article 10 has been violated
because he is unable to present relevant evidence and address the
issue of contaminated air in the absence of the disputed information.

91. Mr. Hoyte’s ability and right to give evidence to a House of Lords
Committee is not curtailed by the statutory bar on disclosure and the
exercise of the discretion under in section 23 of the CAA 1982.

92. Even if that is wrong, Parliament has chosen to restrict disclosure of
information provided to the CAA in pursuance of an ANO by enacting
section 23 of the CAA 1982 and giving the CAA a discretion to disclose
in limited circumstances. The CAA has exercised its discretion
reasonably and proportionately to the aims of furthering the safety of
civil aviation, disseminating information about safety and protecting the
confidentiality of reports submitted to it.

93. In a letter dated 10^th January 2005, the CAA provided Mr. Hoyte with a
detailed explanation of the findings of the operator’s Safety
Department’s investigation into the circumstances reported in the
MOR, which is in effect a summary of the shared conclusions of the
CAA and the operator on the incident. Counsel for the CAA submits
that this was the most it is required to do under Regulation 9 of the Civil
Aviation Authority Regulations 1991.

94. Mr. Hoyte’s analogy with the case of Weber v Switzerland (1990) 4
EHRR 149 does not work because Mr. Hoyte is not facing any criminal
sanction and because the CAA has already permitted a summary of
the disputed information to become public knowledge by disclosing it to
Mr. Hoyte.

95. We do not consider that this right has been engaged or violated.

Conclusion and remedy

96. A number of points have been raised by Mr. Hoyte that have had no
direct bearing on this appeal and are not within the jurisdiction of this
Tribunal. In particular, we cannot comment on any of his substantive
complaints about the handling of the issue of contaminated air by the
operator, the CAA and Parliament or the CAA’s operation of the MOR
scheme generally.

97. The issue of contaminated air on aircraft has been mentioned
throughout this appeal and we are aware it is an issue of wide public
interest. Although Mr. Hoyte believes that the CAA, and others in the
airline industry, are preventing information relating to this issue from
coming into the public domain, this Tribunal can only consider the
decision relating to the disputed information and not any other
information that did not form part of Mr. Hoyte’s request under the
FOIA and that may, or may not, be held by the CAA.

98. For the reasons set out above, we have concluded that disclosure of
the disputed information is prohibited by section 23 of the CAA 1982.
The exemption in section 44 of the FOIA is therefore engaged and this
is an absolute exemption from disclosure. This means that the
information is not disclosable regardless of any public interest there
may be in disclosure.

99. The Tribunal dismisses the appeal.

100. Our decision is unanimous.

Signed

Annabel Pilling
Deputy Chairman

Date 21^st February 2008

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	United Kingdom Information Tribunal including the National Security Appeals Panel
You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Hoyte v Civil Aviation Authority [2008] UKIT EA_2007_0101 (5 March 2008) URL: http://www.bailii.org/uk/cases/UKIT/2008/EA_2007_0101.html Cite as: [2008] UKIT EA_2007_0101, [2008] UKIT EA_2007_101





	Information Tribunal Appeal Number: EA/2007/0101 Information Commissioner’s Ref: FS50148261

	Heard at Field House, London, EC4 Decision Promulgated On 11^th and 12^th February 2008 05 March 2008 BEFORE CHAIRMAN ANNABEL PILLING and LAY MEMBERS JENNI THOMSON ANDREW WHETNALL

	Between JOHN HOYTE Appellant And INFORMATION COMMISSIONER Respondent And THE CIVIL AVIATION AUTHORITY Additional Party Representation: For the Appellant: John Hoyte For the Respondent: James Boddy For the Additional Party: Sarah Wilkinson

United Kingdom Information Tribunal including the National Security Appeals Panel