The Tribunal’s recent decision in Gradwick v IC and the Cabinet Office (EA/2010/0030) dealt with sections 23 and 24 of FOIA. Its concluding dicta also dealt with some procedural matters with potentially substantive implications, particularly concerning redacted material. Public authorities may find these dicta worth noting, both when preparing to disclose redacted material and when preparing for Tribunal hearings.

In response to a FOIA request, the Cabinet Office had decided to disclose some extracts from its Manual of Protective Security but to withhold others. Due in part to administrative complications, it did so by compiling a document consisting solely of the former rather than blanking out parts of the original manual. Relying on FOIA’s reference point being information rather than documents, the Cabinet Office sought to justify this approach in the face of criticism from the Tribunal. The Tribunal however, remarked that “it is at least arguable that a document which sets out the passages that contain the information to be disclosed, but which has the effect of obscuring the nature and extent of the information which has been withheld, does not inform the party making the request whether or not it holds information of the description specified in the request, for which exemption is claimed”.

This approach to the presentation of information could, it observed (without deciding the issue), constitute a breach of section 1 (duty to provide information) and/or section 16 (duty to assist) of FOIA.

The Tribunal indicated that it prefers the following approach:

“Within the practice established by the Tribunal and its users to date, a document characterised as having been redacted has come to mean one in which the extent of the omitted material is indicated by blank spaces and in which, to the extent possible, headings or other indications are retained or inserted to give a fair indication, to both panel members and those presenting submissions, of the broad nature of the information that has been withheld. Annotating the resulting document to indicate the exemption relied on to justify each omission is also a valuable assistance in cases where different exemptions apply to different sections of the document or information.”