Every election, the House of Commons loses some of its most popular and well-respected Members. This year, it is also losing Andrew Lansley, whose reforms whilst Secretary of State for Health have bought such unwavering support from all parts of the political spectrum. Happily, Mr Lansley kept a diary of his momentous period in office. Unhappily, a FOIA request was only made for his Ministerial diary, which records the Secretary of State’s meetings etc, a redacted version of which was released in response to the request. The ICO ordered most of the withheld information to be released, and that was broadly echoed by the First-tier Tribunal in Department of Health v ICO (EA/2013/0087), on which see here, in rejecting reliance on s35(1)(a), (b) and (d) FOIA.

The DoH appealed, and Charles J has now handed down judgment in Department of Health v ICO & Lewis [2015] UKUT 159 (AAC). The appeal was dismissed. There are a number of points of interest in the judgment, not least:

• There is a strong public interest in the press and public having the right, subject to appropriate safeguards, to require public authorities to provide information about their activities: at [10]-[12].
• It is unusual to see a judge refer to his own experience as Treasury Counsel in the development of the law (on public interest immunity): at [18].
• Disclosure under FOIA should be approached on a contents, specific information, basis and not a class basis: at [19]-[21].
• It is right to avoid suggestions of inherent weight (on which see my post here): at [22]-[24].
• A contents based assessment must show that the actual information is an example of the type of information within the class description of an exemption and why the manner in which disclosure of its contents will cause or give rise to risk of actual harm to the public interest, and evidence which does not address this is flawed: at [29]-[30].
• Although generic reasons in support of the public interest may be inevitable, and are not irrelevant, attempts should be made (particularly by the ICO) to identify specific public interests engaged in support of disclosure: at [35]-[38].
• Oral evidence can be useful, particularly where it tests credibility rather than reasoning, but the FTT should ask in each case whether it is needed, why it is needed, what limitations should be placed on it and whether other parties should also give evidence: at [41]-[42], [45].
• Senior civil servants may be taking a line that there should be transparency but only on departmental terms, and their evidence often warrants a ‘Mandy Rice Davies’ sidenote (i.e. he would say that, wouldn’t he): at [48].
• A high degree of deference to either side is very unlikely to be appropriate when assessing the public interest balance; a thorough and critical analysis of the competing reasoning and analysis should be carried out. A judicious recognition of the extent of Government expertise (and Tribunal lack thereof) is appropriate, and proper weight should be given to the views of those who work in the field, but that does not equate to an approach whereby in an unusual case the FTT should accept the Departmental view unless it is irrational: at [57], [59]-[61], [63]-[67].
• The FTT had rightly identified very considerable flaws in the Department’s evidence, such that a risk of harm could not be accepted: at [73]-[79], [81]-[82].
• Charles J’s further reasons on matters not addressed by the witnesses pose clear difficulties for future attempts on the part of (particularly) Government witnesses to assert risk of harm from disclosure without specific evidence: at [80].
• When considering whether information is held under s3(2)(a) FOIA (“otherwise than on behalf of another person”), the intention of Parliament in promoting the purpose of FOIA (first bullet above) means that University of Newcastle upon Tyne v ICO & BUAV [2011] UKUT 185 (AAC) is correct (see here) and that a predominant purpose approach between different types of information is incorrect: at [106].
• Non-Ministerial appointments in the diary were supplied by the Minister to avoid clashes etc, and must be considered as part of the diary as a whole. There was a sufficiently direct connection between the content and the reason why the information was recorded by the Department for it to be held. Whether or not it remained held under FOIA might depend on whether it was still said to be exempt under FOIA (for non-s40 reasons). The diary remained held: at [114], [117], [119]-[121].

The judgment is a lengthy one, but contains more nuggets than a KFC bargain bucket (other purveyors of fried chicken are available). Our very own secret blend of eleven herbs and spices, Robin Hopkins, appeared for the ICO.

Christopher Knight

“The world is full of obvious things which nobody by any chance ever observes.” Sherlock Holmes, The Hound of the Baskervilles.

What else can there possibly be to say about Evans not covered in Robin’s excellent post from Thursday? One can contemplate the possible amendments the Government might make (how much clearer could Parliament have made the purpose of section 53), and what other changes might be made at the same time, especially in the light of the PM referring to FOIA as one of the “buggerations” of Government in the Times magazine yesterday. One can analyse the dissenting judgments, which is certainly worthy of time. One can remark again on the constitutional importance of the Supreme Court emphasising the rule of law.

Most information law practitioners probably think there isn’t really anything in Evans that is going to be very relevant to their daily lives. Even central Government FOIA officers have onlyseen seven vetos in ten years, so Evans isn’t going to make much of a practical difference.

But. Almost in passing, there is one passage in the judgment of Lord Neuberger (if not the majority judgment, at least the leading judgment) which is worthy of notice.

As has been previously pointed out on this blog, the Upper Tribunal in Defra v ICO & the Badger Trust [2014] UKUT 526 (AAC) set the cat amongst the FOIA pigeons (if that is not too much of a mixture of animal metaphors) by suggesting at [44]-[48] that it was an open question whether the public interest balance was to be assessed at the time of the request/response or afresh at the time of the Tribunal hearing. That baton is now being taken up in the  latest round of the interminable APPGER litigation.

However, it is possible that the Supreme Court has beaten them to it. The time of the assessment of the balancing exercise was a point of some relevance to the reasoning of Lord Neuberger, because a (powerful) objection to the reasoning of the Court of Appeal (including from me) was that the two permitted exceptional categories, particularly the reliance on fresh evidence, did not leave much room for application of the veto where the public interest was adjudged at or around the time of the request. Lord Neuberger, unlike the Court of Appeal, sought to address the point. In doing so, he noted at [72] that:

“It is common ground, in the light of the language of sections 50(1), 50(4) and 58(1), which all focus on the correctness of the original refusal by the public authority, that the Commissioner, and, on any appeal, any tribunal or court, have to assess the correctness of the public authority’s refusal to disclose as at the date of that refusal.”

As the text sets out, no contrary point was argued, but Lord Neuberger does not express any dissent about it and sets out the legal basis for it in the statutory language. Moreover, he went to reiterate the point, and the exceptions to it, at [72]:

“However, although the question whether to uphold or overturn (under section 50 or sections 57 or 58) a refusal by a public authority must be determined as at the date of the original refusal, facts and matters and even grounds of exemption may, subject to the control of the Commissioner or the tribunal, be admissible even though they were not in the mind of the indivdual responsible for the refusal or communicated at the time of the refusal to disclose (i) if they existed at the date of the refusal, or (ii) if they did not exist at that date, but only in so far as they throw light on the grounds now given for refusal“.

It is difficult to see how the obiter musings of the Upper Tribunal in Badger Trust can withstand this, fairly prolonged, piece of Supreme Court reasoning. Arguments may be made that it was common ground, and possibly that was obiter itself, but it will self-evidently persusive that such experienced and eminent counsel agreed such a standpoint, and that the leading judgment relies upon it.

Perhaps the debate door is shut only shortly after being opened? Perhaps Evans has something to say to FOIA lawyers outside the scope of the veto power after all? Perhaps, perhaps, perhaps…

Christopher Knight

PS A prize (kudos only though) for the first person to spot the link between opening and closing of this post.

Says the White Rabbit in Alice in Wonderland, “Oh my furry whiskers, I’m late, I’m late, I’m late!” Although the application of FOIA may sometimes feel like Wonderland, the feeling it induces is normally more akin to turning up unexpectedly at the Mad Hatter’s Tea Party (although attributing FTT judicial figures to the characters of the Mad Hatter and the Dormouse is beyond me). But one thing that has, since Birkett v DEFRA [2011] EWCA Civ 1606, not generally proved very controversial is the question of late reliance on exemptions; the White Rabbit need have little fear. Birkett made clear that late (usually after the DN and in the course of litigation before the FTT) reliance on substantive exemptions is permissible, subject to case management powers, under the EIR. The unappealed equivalent decision under FOIA, Information Commissioner v Home Office [2011] UKUT 17 (AAC), has generally been assumed to be correct.

However, there is a generous ‘but’ involved, about which lawyers are second only to Sir Mixlot in their appreciation. Can one rely late upon an exemption in Part I of FOIA? There has been a conflict of FTT and Upper Tribunal authority on the point. Independent Police Complaints Commission v Information Commissioner [2012] 1 Info LR 427 had held that there could be late reliance on section 12. The Upper Tribunal in All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner & Ministry of Defence [2011] UKUT 153 (AAC); [2011] 2 Info LR 75 expressed the clear, if obiter, view that section 12 was not in the same position as substantive FOIA Part II exemptions because it had a different purpose; section 12 is not about the nature of the information but the effect on the public authority of having to deal with the request. The scheme of FOIA was likely to be distorted, the Upper Tribunal held, if the authority could suddenly rely on section 12 after already having carried out the search and engaged with the requestor: at [45]-[47]. The APPGER approach was accepted by the FTT in Sittampalam v Information Commissioner & BBC [2011] 2 Info LR 195. There was at least a school of thought that the APPGER logic ought also to apply to section 14 (which, as was explained in Dransfield, is not properly an exemption at all: at [10]-[11]). Then, in Department for Education v Information Commissioner & McInerney (EA/2013/0270), Judge Warren firmly concluded that section 14 (and by implication section 12) could be relied upon late. I suggested at the time that the conflict of authority on the point might require appellate resolution, and Ms McInerney appealed on that basis (in partial reliance, it appears, on my blogpost: see at [22] of the UT judgment).

 The appeal in McInerney v Information Commissioner and the Department for Education [2015] UKUT 0047 (AAC) has now been determined by Judge Jacobs (who heard the Birkett and Home Office cases). It has definitively resolved that a public authority may rely on sections 12 or 14 for the first time before the FTT, subject to the case management powers of the FTT. Although the judgment of the Upper Tribunal is fairly lengthy, the key part of the analysis is fairly brief. Judge Jacobs considered the principles derived from Birkett overtook the reasoning in APPGER, that the discussion of principle in his Home Office decision applied equally to the Part I exemptions, that section 17(1) did not prevent late reliance, that there was nothing in section 12 to require a different answer, and that late reliance may be forced on a public authority for good reasons (such as the instant appeal): at [33]-[41]. The Upper Tribunal did not consider it necessary to review the various FTT decisions. If section 12 is relied upon before the FTT for the first time, it will be the FTT which has to review the reasonableness of the estimate: at [40]. The Upper Tribunal considered that the answer on section 14 followed naturally from the answer on section 12.

 The position now at least has the benefit of consistency. Requestors will doubtless continue to be extremely frustrated by public authorities who appear to change their position at the last moment (usually when lawyers have become involved), and the FTT does not appear to have been often exercising its powers to restrict late reliance, or to punish incorrect late reliance in costs. However, if an exemption is relied upon correctly, reaching the correct answer is important. Whiskers may soothed, pocket watches stowed away, and lateness need rarely be an issue.

 Also of some practical interest will be the discussion of Judge Jacobs on the interaction of sections 14 and 16. It might be thought difficult to see how the section 16 duty could really apply to a vexatious request (“we advise you to submit a request which is not vexatious” perhaps?). Judge Jacobs accepted at [55] that a request should not have to be dissected to see if it can be severed, because that would undermine the purpose of section 14, but that section 16 cannot be ignored. The circumstances might allow a public authority to extract one part to create a non-vexatious request: at [56]. This is a little hard to understand; it might be thought the better analysis would be that properly construed, that one part was not a vexatious request, and it is not clear whether section 16 adds much. He added that it is not for the FTT to apply section 16 to assist a requestor – only the public authority is obliged to do so: at [57]-[58].

 Andrew Sharland appeared for the DfE and Robin Hopkins appeared for the ICO.

 Christopher Knight