All the pieces matter: relevance, redactions and open justice

Public lawyers, in particular, may have encountered government departments or others redacting the names of ‘junior officials’ on grounds of ‘relevance’ or ‘data protection’, when disclosing documents in litigation. Anecdotally, at least, that has been an increasing trend in recent years. The judgment of Swift J in FMA and Others v SSHD [2023] EWHC 1579 (Admin) contains a very clear – and welcome – statement that this approach is not appropriate.

At §48, the Judge held that:

“One further matter needs mention. The Home Secretary’s initial open disclosure included documents redacted to remove the names of the civil servants who had written them, including redaction of the names of the officials who had prepared the March 2022 consideration minute and the January 2023 consideration minute. The redactions were said to be on the ground of “relevance”. Documents were served in that form without the permission of the court. These redactions should not have been made. It is one thing for a document that genuinely deals with different matters, some relevant to the litigation others irrelevant, to be redacted on grounds of relevance. It is another matter entirely for a document that is relevant to be edited to remove information that goes to explain the document’s provenance and context. One example which has recently become common is when emails are redacted to remove details such as the name of the sender, names of recipients, or the names of persons copied into the message. Such information should not be redacted on grounds of relevance. Such redactions, at the least, make the significance of documents more difficult to understand and, in some instances, they may obscure the significance of a document almost completely. If a party wishes to redact such information from disclosable documents, an application to the court should be made and the application should explain the reason for the proposed redaction, and when necessary set out supporting evidence. In this case, the names and job details of the civil servants who had assessed the information relevant to the not conducive to the public good question in the consideration minutes were redacted. That information was not irrelevant and ought not to have been redacted. If, to any extent, a practice is developing by which such information is routinely removed from documents that are disclosable in judicial review proceedings, that practice should cease.”

Swift J’s conclusion on the proper approach to disclosing documents echoes the remarks of Kerr J last year in Linda Lu v Solicitors Regulatory Authority [2022] EWHC 1729 (Admin).

In Linda Lu, Kerr J was critical of “the creeping march of anonymity and redaction” (§5) and the “common misconceptionthat if the identify of a person in legal proceedings is not directly relevant, there is no public interest in that person’s name being known” (§6). He held that “Courts and tribunals should not be squeamish about naming innocent people caught up in alleged wrongdoing of others. It is part of the price of open justice and there is no presumption that their privacy is more important than open justice” (§138).

In this context, transparency is not (only) an end in itself but an important means of ensuring accountability and sound public administration. The judgment in FMA is an apt reminder that open justice remains the starting point when disclosing documents – and for good reason.

John Bethell