A Green Willow Must be my Garland

Continuing its consistent run of FOIA judgments which add very little to the jurisprudence is the Court of Appeal’s effort in Willow v Information Commissioner & Ministry of Justice [2017] EWCA Civ 1876. The information requested was a prisoner restraint techniques manual used in youth offender institutions, and the Commissioner and FTT had upheld the application of the section 31(1)(f) exemption, i.e. information prejudicial to the maintenance of security and good order in prisons or other institutions in which people are detained. The Court of Appeal had to consider the public interest balance and the extent to which that was or was not affected by the UN Convention on the Rights of the Child (“UNCRC”) (an unincorporated treaty). The Upper Tribunal had dismissed Ms Willow’s appeal in terms which did not obviously call for appellate consideration (see my post here). Nothing in the judgment of Sir Brian Leveson P is likely to change the reader’s view of that impression, and the one issue which might have been of wider significance apparently raised for the first time in the appeal to the Court of Appeal – the effect of the Magyar Helsinki decision in Strasbourg on Article 10 (see the post here) – ended up not being pursued in oral submissions.

There is little enough that can be taken from Leveson P’s judgment to be applicable in wider FOIA use, but there are some passing comments of helpful reiteration. In considering the relevance of the section 31(1)(f) exemption being engaged to the public interest balance, the judgment notes at [28] that “The features which justify the engagement of s. 31(1)(f) are equally relevant to the potential prejudice which falls on one side of the balance and, without being conclusive, may make it more difficult (but not necessarily impossible) to say that the countervailing arguments to disclosure are non-existent or so diaphanous that a decision to uphold the decision of the Information Commissioner is perverse, irrational or unreasonable” particularly where the relevant prejudice was said to be likely to occur relatively frequently.

The Court agreed that “actual harm” and “actual benefit” encompass risk of actual harm and real chance of benefit and that consideration must be given to realistic possibilities: at [32]. FOIA would be difficult to apply as a regime if that were not the case. Leveson P also relied on the applicant and motive blind principles of FOIA in relation to the potential use of the information by others: at [36], and particularly doubted the suggestion that any independent reviewer of institutions and their techniques would not be permitted to see the information. The Court upheld the approach of the FTT to the section 31 balance.

The bulkier part of the reasoning concerned the argument that the FOIA provisions were imprecisely worded and were accordingly capable of being interpreted consistently with Article 3(1) UNCRC, despite that treaty not being incorporated into domestic law. Thus, that was the interpretation that should be adopted and that incorporated into the meaning of the phrase “public interest” that the best interests of children should be a primary consideration. Leveson P was not impressed: “One could equally say that the phrase “public interest” is capable of requiring consideration to be given to the avoidance of discrimination on grounds of race, gender etc. All these matters may inform the content of the “public interest” which the decision-maker has to consider but they do not contribute to determining the meaning of the words themselves“: at [47]. There was no ambiguity in the meaning of “public interest” in section 2. Indeed, “It could not be clearer. It is a well known and well understood concept both in law and in general use“: at [48]. In any event, thought the Court of Appeal, both the Commissioner and the FTT had correctly identified and applied the fact that the best interests of affected children carried some weight both for and against disclosure: at [50].

Christopher Knight