Diary of a Wimpy Minister

May 25th, 2017

A mere three years ago, the FTT held that the Ministerial Diary of Andrew Lansley was relevantly held under FOIA and was not exempt under section 35(1)(b). Now the Court of Appeal has held, in Department of Health v Information Commissioner & Lewis [2017] EWCA Civ 374, that the FTT made no error. The fact that no-one can now remember who Andrew Lansley was (now Lord Lansley CBE thank you) or why anyone would care, is by-the-by.

It is hard to get too excited about the Court of Appeal’s judgment, delivered by Sir Terence Etherton MR. There was much of interest in the Upper Tribunal judgment of Charles J (on which see my post here), but on yet further appeal, the Court has clearly decided that the less said the better. Indeed, that also appears to have been the Department’s view, as the MR records that no argument was made in support of the ground of appeal that Charles J had introduced an approach as to the assessment of damage which required the Department to show actual harm, rather than that damage would flow from disclosure of particular types of information.

What was pursued was that the FTT had not properly identified the (non-existent said the Department) benefits in disclosure, and that the FTT and UT had incorrectly held that the information was held at all.

As has not infrequently been the case, the Court of Appeal judgment has turned out to be a relative damp squib (it must be the way Hopkins tells ‘em). You can read the judgment yourselves here: Approved Judgment rhd – Department of Health v Information Commissioner.

On the approach to the public interest, the MR was unimpressed with the challenge to the FTT’s analysis (on which see here). He dismissed complaints about the reasoning (which given the relative length and detail of that judgment in comparison to many others is hardly unfair), which appears to have been focus of the Department’s argument. He held that most of the factors favouring disclosure identified by the FTT were specific and linked to the particular information, arising out of the evidence in the case: at [48]. Nor was it right to criticise the FTT for applying a generalised presumption in favour of disclosure: at [47].

Possibly the only paragraph of wider legal use is [46], in which the Master of the Rolls agrees with Charles J that when a qualified exemption is engaged, there is no presumption in favour of disclosure, but that if the public interests balance evenly then the public interest will not have been shown to favour maintaining the exemption. (What the point of this distinction is might be thought not immediately obvious.) He also agreed with Charles J that one should be cautious about comments to the effect that the requestor or ICO need not spell out in any detail the particular benefits of disclosure. Nonetheless, the Court was clearly unimpressed by the idea that there was anything seriously wrong with the detailed balancing exercise undertaken by the FTT.

On the section 3(2), information not held point, there was no legal dispute that the correct test was that from University of Newcastle v Information Commissioner & BUAV [2011] UKUT 185 (AAC) that there must be an appropriate connection between the information and the authority: at [54]. The MR thought it was obvious that the Ministerial diary was held by the Department; it was set up and maintained by the Department and concerned section 35(1) matters. At the very least, the Department needed to know who the Minster had seen and when: at [55]. Even if the entries were also for personal or constituency matters, they were held by the Department, and nor, thought the MR, did the termination of holding Ministerial office alter matters if only because it remained necessary as a matter of historical record for the Department to know what the Minister had been up to: at [56]-[57]. One might think the idea of a “historical interest” in such matter a little unlikely – he was no Jeremy Hunt after all – but journalistic interest is more plausible.

It is a judgment which is unlikely to trouble the law reporters, and vast swathes of the Upper Tribunal’s comments remain binding and unaffected this appeal. But given the occasional desire of the Court to say something which turns out to be vastly practically unhelpful just for the sake of it (Dransfield in the Court of Appeal anyone?), a more pedestrian approach is not to be sniffed at.

Robin Hopkins appeared for the ICO. So you can blame him.

Christopher Knight

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