Two new Upper Tribunal decisions: commercial confidentiality, ministerial communications

The Upper Tribunal has issued two decisions on information rights matters this week. Both are by Upper Tribunal Judge David Williams, and both include substantive treatments of some of the issues that arise most commonly in information rights litigation.

Natural Resources Wales and SI Green (UK) Ltd v Information Commissioner and Friends of the Earth Swansea [2013] UKUT 0473 (AAC) saw the Upper Tribunal overturn a First-Tier decision on commercial confidentiality under the Environmental Information Regulations 2004, concerning the operation of a landfill site near Swansea. I was not involved in the First-Tier Tribunal proceedings, but blogged on the decision here. The Upper Tribunal’s decision is here. It found that, contrary to the approach of the First-Tier Tribunal, regulation 12(5)(e) EIR (confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest) is not the same as section 41(1) of FOIA (actionable breach of confidence).

In Judge Williams’ second judgment published this week, he upheld the First-Tier Tribunal’s decision in Cabinet Office v IC and Gavin Aitchison (EA/2011/0263). Anya blogged on the First-Tier Tribunal decision here. In essence, it concerned the takeover of Rowntree by Nestle in 1988 and what, if anything, ministers in the Thatcher government had said to each other about it. Questions also arose about the relevance of the reduction of the ‘Twenty-Year Rule’ for historical records to a ‘Ten-Year Rule’. The relevant exemptions were sections 35(1)(a) and (b) (formulation or development of government policy; Ministerial communications). The Tribunal found the public interest to favour disclosure (and, as regards one part of the request, confirming or denying whether any information was held relating to Cabinet discussions on the topic). The Upper Tribunal agreed. See here: Cab Off Aitchison GIA 4281 2012-00, and also the coverage by the requester (a journalist at the York newspaper The Press) here.

Given my involvement in both cases, I don’t offer any analysis on Panopticon today. Instead, I offer them as weekend reading for enthusiasts. You’re welcome.

Robin Hopkins

Right to withdraw children from sex education classes

Under s. 405 of the Education Act 1996, any parent has the right to withdraw a child from sex education at a maintained school up to the age of 19, except to the extent that the subject is covered in a science lesson that forms part of the national curriculum. On 5 November 2009, the Labour government announced that a proposed new bill, the Children Schools and Families Bill would include a provision that would remove a parent’s right of withdrawal once a child had reached the age of 15 years. The next day, the Family Education Trust made a FOIA request for all correspondence, notes and reports on this issue. This was refused. The proposed legislative change was abandoned when the Coalition government came to power in May 2010. The requester made the same request again, seeking only information created prior to May 2010, i.e. under the last government. The Department for Education again refused, continuing to rely on s. 35(1)(a) of FOIA (formulation or development of government policy). The requester’s appeal to the Tribunal concerned the public interest balancing test only. The appeal in Family Education Trust v IC and Department for Education (EA/2011/0244) was dismissed.

Three points are of interest as regards the public interest in maintaining the exemption for the formulation and development of government policy.

First, the appellant argued that there had been a lack of transparency about this decision. The Tribunal thought this a valid type of argument in general: it could “envisage cases in which public dissatisfaction with the rigour or comprehensiveness of a public consultation may add weight to the public interest in having information disclosed”. This did not, however, have purchase on the facts of this case.

Secondly, what of the fact that the relevant provision had been abandoned during the “wash up” of outstanding legislative business immediately before the May 2010 election? The appellant said this meant no ‘safe space’ was then needed, as policy development on this issue was no longer live (this was raised as a public interest argument, but it seems to me it could equally well be an argument against the engagement of s. 35(1)(a) in the first place). Again, on the facts this point did not have force, as the issue remained live after the election. The Tribunal did, however, add this note of caution:

“It does not follow, from our conclusion on this aspect of the case, that the period during which the “safe space” must be protected will be without limit. Some elements of the public debate on sex and relationship education may be perennially controversial but, in the event of a further information request being made at any time in the future, it will be necessary for the Department to consider the state of policy development at that time.”

Thirdly, the Department also argued that there was a public interest in protecting from disclosure contributions made by those consulted on policy matters in this area. The Tribunal gave this factor less weight, “in that those submitting views with the intention of influencing policy decisions by government should in most cases accept that the consultation process will be conducted in public view. We nevertheless accept that a degree of protection may be required in the context of a particularly contentious issue, such as the right of withdrawal and that, had we been inclined to order to disclosure generally, it might have been appropriate to make special provision for some elements of the consultation process.”

Robin Hopkins


I gave a paper at the last 11KBW information law seminar, on the new Government’s plans for information law.  An updated version of the paper is now available here.  It takes account of the Coalition’s programme, published on 20th May.

The new Government is putting forward a number of proposals for disclosing public sector information on a regular and routine basis, rather than on request:  for more detail see this posting on the official website for the Prime Minister’s office. On 4th June 2010 the Government disclosed a considerable amount of information from the COINS database (standing for Combined Online Information System) relating to public spending in 2009/10.  In total there are thought to be over 3 million separate items of information in the new release.  See here for the raw data; and see here for a tool designed by the Guardian, intended to help navigate the newly released information.  No doubt the COINS release will lead to a number of follow-up FOIA requests relating to specific items of expenditure; it will be interesting to see how those requests are handled by Government departments.  


On 19th May I gave a paper at 11KBW’s Information Law seminar, entitled “Information Law in the new Parliament”.  This was a discussion of the new coalition government’s proposals relating to information law.  On the following day, “The Coalition:  our programme for government” was published, giving  a much fuller account of the new Government’s programme.

I am revising my paper to take account of the new document.  I will be posting the revised paper here, in the course of next week.