November 16th, 2011

The British Union for the Abolition of Vivisection’s requests for information from Newcastle University have reached the Tribunal system before: see my post from May this year on the Upper Tribunal decision concerning the meaning of “held”. The latest First-Tier Tribunal litigation between these parties, BUAV v IC and Newcastle University (EA/2010/0064), again considered information about project licences for experimentation on non-human primates. The Tribunal found that the University was required to disclose that information, except for a small amount which it was entitled to withhold on the basis of sections 38(1) (health and safety) and 43(2) (prejudice to commercial interests).

Section 38(1) crops up relatively infrequently at Tribunal level (for another notable example, see my post on the PETA case of 2010 – which, interestingly, also concerned a request to a university for information concerning animal experimentation). This BUAV decision is arguably now the leading case on this exemption.

There are four important points to note. First, what does “endanger” mean? BUAV submitted that it is the section 38 equivalent of “prejudice” as used in other exemptions. The University submitted that the “endangerment” requirement was met where there was a weighty chance of a risk to health or safety. The Tribunal drew a distinction between “risk” and ”danger”, saying this:

“We do not fully accept either submission. We must take into account that in s38(1) Parliament chose to use the word “endanger” and did not refer either to “injury” or to “prejudice”. On the other hand, considering the statutory purpose of freedom of information, balanced by exemptions, we are not persuaded that it would be right to read the word “endanger” in a sense which would engage the exception merely because of a risk. A risk is not the same as a specific danger. Every time a motorist drives on the road there is a risk that an accident may occur, but driving is only dangerous when a particularly risky situation arises. So, for example, there is always a risk that a researcher might become a target for persons opposing animal research by unlawful and violent means, but the researcher’s physical health would not be endangered unless a specific attack were made. We need to consider the likelihood of such an attack, and the likelihood of other conduct which would endanger mental health or other aspects of safety.”

Secondly, the Tribunal emphasised the importance of establishing a causal link between disclosure of the particular information and the envisaged danger:

“There is also a causation criterion to be met. We are not required to consider in the round the likelihood of the researchers or other persons being endangered, but specifically the likelihood of such endangerment as a result of disclosure of the requested information.”

For most of the requested information, section 38(1) was not engaged: the evidence showed the risk of harmful action by animal rights extremists to be low, and the evidence in support of engaging the exemption mainly comprised expressions of fear. A small amount of information did, however, come within the exemption because of how it was likely to be misconstrued. This raises the third important point, on which the Tribunal said this:

“In this connection we wish to make clear our view that information cannot generally be withheld simply because it might be misunderstood or taken out of context. A public authority can publish together with information released under FOIA whatever explanations or additional information it wishes. But we recognise that there comes a point where a particular piece of information may be so liable to be misunderstood and misused that the exemption is engaged.”

The fourth notable point concerns the in-built weight of the exemption. Section 38(1) is difficult to engage, but where it is engaged, the public interest in maintaining it is strong:

“Self-evidently, there would need to be very weighty countervailing considerations to outweigh a risk to health or safety which was of sufficient severity to engage section 38(1).”

Tim Pitt-Payne QC appeared for Newcastle University.

Robin Hopkins

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