With FOIA celebrating its tenth birthday this month, it is striking that one of its most taken-for-granted axioms has been called into question. The axiom is this: the relevant time is the time of the request, extending perhaps until the statutory time for compliance with the request. When you are assessing the public interest balance and the engagement of exemptions, that is the time you look to; you ignore later developments.

In Defra v IC and the Badger Trust (GI/79/2014), the requester (the Badger Trust) had requested information about Defra’s risk assessments for the proposed badger culling programme. The ICO ordered disclosure. Defra appealed. The case was transferred to the Upper Tribunal due to a witness anonymity issue. The Upper Tribunal dismissed Defra’s appeal. It was not persuaded by Defra’s evidence as to the public interest balance. The judgment is here DEFRA v ICO and Badger Trust – Judgment on Public Interest.

In its judgment, the UT pondered the question of the relevant time. It declined to rule, but stated that it considered this question to be an open one: see paragraphs 44-48. A central tenet of FOIA/EIR orthodoxy over the past decade has been called into question.

Another recent UT judgment is worthy of note as FOIA turns ten. It does not introduce uncertainty, but rather – from the point of view of FOIA’s fans – provides a heartening affirmation of the purpose of the legislation. The case is UCAS v IC and Lord Lucas [2014] UKUT 0557 (AAC): see here UCAS. It was about the extent to which FOIA applied to UCAS. The point I draw out here is this one, at paragraph 39 of the decision of Judge Wikeley:

“I agree with Mr Knight that the starting point in this exercise in statutory interpretation must be the principle that FOIA is a constitutionally important piece of legislation, the scope of which must be interpreted broadly. This much is plain from Sugar (No. 2) itself (see Lord Walker at [76] and Lord Mance at [110]), as well as from other decisions of the House of Lords and Supreme Court (see Common Services Agency v Scottish Information Commissioner [2008] UKHL 47 at [4] per Lord Hope and Kennedy v Charity Commission [2014] UKSC 20 at [153] per Lord Sumption). This emphasis on a liberal construction is, to borrow a phrase from a different context of statutory interpretation, the golden thread which runs through the FOIA case law, whether in the rarefied atmosphere of the Supreme Court or on the judicial shop floor at the First-tier Tribunal.”

So then, happy birthday FOIA. Some of the assumptions of your youth may be in question, but your golden thread is strong. Somebody put that in a greeting card, please.

I appeared in the Badger Trust case. Chris Knight appeared in the UCAS case.

Robin Hopkins @hopkinsrobin