Although hardly at the top of anyone’s list of burning questions which keep them awake at night, there has been a debate about whether the permission to rely on exemptions late (usually after the DN and in the course of litigation before the FTT) extends beyond the substantive exemptions in Part II of FOIA – as provided for in Birkett v DEFRA [2011] EWCA Civ 1606 – to the procedural exemptions of sections 12 and 14.
The question is made all the more enthralling by a conflict of case law, which those who attended our Information Law Conference in 2013 and who weren’t snoozing during my paper will recall. 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]).
In Department for Education v Information Commissioner & McInerney (EA/2013/0270) GRC Chamber President Judge Warren considered the late reliance by the DfE on sections 12 and 14, and upheld the DfE’s appeal under section 14. In an appendix, he dismissed the suggestion of the ICO that APPGER meant that section 14 could not be relied upon late. In rather brief reasoning, he considered that if section 17 did not bar late reliance on Part II exemptions (as it was clear that it did not following Birkett), there was no linguistic reason to apply the same approach to Part I exemptions. Sections 12 and 14 could therefore be relied upon late, as a matter of right.
So that is that. Except of course, that there is now a real conflict of authority at FTT level, and with conflicting dicta at UT level too (APPGER having doubted Information Commissioner v Home Office [2011] UKUT 17 (AAC) on this point). Maybe someone would like to take the point on appeal and have it properly determined.
Andrew Sharland was for the DfE and Robin Hopkins was for the ICO.
Christopher Knight