Good Things Come to Those Who (Have Inherent) Weight

October 29th, 2014

Philosophically, everything must have an inherent weight. Otherwise it would have no weight at all. But FOIA is not concerned with philosophy; it is much more concerned with who is in charge of the sheep dip, and indeed the levels of public funding for the sheep being dipped. (No points for spotting that reference, Bruce.) As a result, there are often debates in the FOIA case law about whether a particular qualified exemption contains an inherent weight, i.e. is the fact that the exemption is engaged at all sufficient to place some weight in the public interest balance against disclosure? The answer varies according to the particular exemption.

In Cabinet Office v Information Commissioner [2014] UKUT 461 (AAC), the Cabinet Office appealed against a decision of the FTT that the number of times the Reducing Regulation Committee has met should be disclosed. This apparently supremely uninteresting piece of information was withheld in reliance on section 35(1)(b) FOIA, which provides a qualified exemption for information relating to Ministerial communications. The Cabinet Office argued that the FTT had erred in not ascribing an inherent weight to section 35(1)(b), and also that it had misunderstood aspects of the evidence on prejudice presented to it.

The appeal in fact succeeded on the second ground, because Judge Turnbull took the view that the FTT had misunderstood an aspect of the evidence being given to it  – even though it had got it right in other places – and was not sufficiently sure that that would make no difference, so that the case was remitted. That aspect is very fact-specific and unlikely to be of much wider interest, except possibly to avid watchers of the Reducing Regulation Committee.

The Cabinet Office did not succeed on its first ground. Under the existing state of the jurisprudence, section 35(1)(c) (advice of Law Officers) has some inherent weight (HM Treasury v Information Commissioner [2009] EWHC 1811; [2010] QB 563) but that section 35(1)(a) (formulation of Government policy) does not (OGC v Information Commissioner [2008] EWHC 774 (Admin)). Section 42 (legal professional privilege) also has some inherent weight: DBERR v O’Brien [2009] EWHC 164 (QB). Judge Turnbull concluded at [47]-[70] that there was no inherent weight in the section 35(1)(b) exemption. He reasoned that there were a variety of policy justifications underpinning the various limbs of section 35, and they did not all overlap. The fact that the information has merely to “relate to” Ministerial communications means that the exemption could be engaged without bringing into play to any significant extent any of the public policy considerations underlying the exemption. It was not obvious how the information in issue would undermine the convention of collective Cabinet responsibility, or have an effect of the future behaviour of Ministers. The section 35(1)(c) exemption was narrower in that it was more likely that the information would engage the central policy justification for the exemption, but that where it did not there may be situations where even the exemption in s.35(1)(c) can be engaged without any necessary assumption of some inherent weight (see at [61]). Section 42 was different because it did not include the words “relate to” and any disclosure would undermine the single policy justification of protecting privileged access to legal advice.

Judge Turnbull’s analysis at [67] was to set out a test which is more nuanced and contextual than simply an assertion of inherent weight:

I think that some confusion and apparent contradiction has been introduced into the case law by formulating the question as being whether the exemption in a particular subsection of section 35(1) carries inherent weight. In my judgment it is preferable (i) to consider to what extent the public interest factors potentially underlying the relevant exemption are in play in the particular case and then (ii) to consider what weight attaches to those factors, on the particular facts.”

As a result, the FTT had not erred in law. (In fact, the Cabinet Office had not made the argument before the FTT that there should be an inherent weight in section 35(1)(b). That was evidently the correct position to have taken.) It is difficult to argue with the reasoning of Judge Turnbull, and the judgment is a helpful clarification of the law under sections 35(1)(a) and (b), although it perhaps makes the situation slightly less clear in relation to (c), given the reinterpretation of HM Treasury to allow for less/no inherent weight in more tangential cases. The only surprise is that Lord Steyn’s much cited adage from R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at [28] that “in the law, context is everything” did not get another outing.

Robin Hopkins appeared for the ICO.

Christopher Knight


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