Mixed Information: No Guidance Please, We’re the Court of Appeal

December 20th, 2019

It is often helpful for the appellate courts to give judgments which provide guidance to assist decision-makers and lower courts in applying the law to different, but similar, cases. After all, if the law is being decided by reference to applicable principles, those ought to be able to give guidance beyond the very specific facts of the case. It has, however, been a disappointingly regular feature of the Court of Appeal’s approach to FOIA and EIR generally to disapprove of such guidance as the Upper Tribunal has sought to provide (fair enough) and replace that guidance with nothing at all (less fair).

The latest example is Department for Transport v Information Commissioner & Hastings [2019] EWCA Civ 2241 (DoT v Info Commissioner). Keen readers will recall the post on the Upper Tribunal’s judgment – [2018] UKUT 184 (AAC) (and see here) – and the issue which arose about how to approach information which was partly not environmental, and partly (possibly) environmental. The question is particularly important in Hastings, because the request was for information about Ministerial meetings with the Prince of Wales, which is subject to an absolute exemption (now) under FOIA, but not under the EIR. The Upper Tribunal’s approach was described by McCombe LJ as “very careful and rigorous“, which is never a good sign.

What then is the approved approach? McCombe LJ considered the case to be “relatively easy“, and all the high-falutin’ attempts by counsel and lower tribunals to propose tests and resort to general principles was much less helpful than just looking at the information and reaching a decision: at [23]. Doubtless so, but as the Court of Appeal has also handed down a closed judgment, it might have been helpful if some attempt to explain why it was easy in this – and why it may or may not be so easy in other cases as a result – had been made.

Much of the judgment contains either a summary of the decisions below – at [6]-[16] – or of the judgment of Beatson LJ in Henney – at [26]-[31] (and see the summary here) – and McCombe LJ was of the view that it would rarely be necessary to do more than apply the Henney principles, which did not need expanding on, to a given case. The cryptic comment at [33] that tribunals should be cautious when dealing with information which is on the EIR borderline and absolutely exempt under FOIA is especially unhelpful: does this mean they should err on the side of applying the EIR, or just think extra-hard (and if so, applying what test)?

The Court of Appeal felt the FTT had gone wrong because, pre-Henney, it had adopted a too-rigid segregation approach, focussing on the information after separation. But it also felt the UT had erred, because the measure was government housing policy and the withheld information “does not help one better to understand the measure in question“: at [35]. That apparently led to the view that the UT failed to focus on whether this information was “on” the measure, although information can surely be on the measure and yet not particularly help to understand the measure. The test, if there is one, at [36] seems to be that the information was not “on” the policies, just because it was a discussion about the policies, because it was not the case that without the withheld information there “is no government housing policy“. This, with respect, and judging from the open judgment alone, seems a very difficult approach to understand and imposes a very high bar indeed: a sort of ‘criticality’ or ‘centrality’ test for the information in issue, which is not obviously consistent with Henney or the Directive.

The Court of Appeal unanimously held that the information was not environmental. How helpful it will be is another matter.

Christopher Knight

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