Closed Sessions in High Court Appeals

Last week the High Court heard an appeal brought by the Government against the decision of the Information Tribunal in O’Brien v Information Commissioner & Department for Business Enterprise and Regulatory Reform. The appeal concerned, in particular, whether the Tribunal had erred when applying the public interest test in the context of the exemptions afforded under section 35 (policy development) and section 42 (legal privilege) FOIA. During the course of the appeal, questions where raised by the Respondent (Mr O’Brien) as to whether the Court had jurisdiction to consider: (a) an annex to the decision which the Tribunal had stated should remain confidential to the Commissioner and BERR, pending any further appeal; and (b) the disputed information which had been withheld by BERR. It was argued on behalf of the Commissioner: (a) that the Court had jurisdiction to consider the confidential annex as that annex clearly formed part of the decision which was being appealed; and (b) that the Court had power to consider the disputed information in closed session pursuant to CPR 52.10(1). In summary, CPR 52.10(1) affords the court all the powers of the lower tribunal which is being appealed from, subject to any enactment which precludes the court enjoying such powers.  A judgment on the appeal is awaited.

Tribunal decision:

https://www.informationtribunal.gov.uk/DBFiles/Decision/i258/O’Brien%20v%20ICO%20(EA-2008-0011%20%5BFS50082127%5D)%20Decision%2007-10-08.pdf

Government Appeals in Meta Request Case

In Home Office & Ministry of Justice v Information Commissioner, the Information Tribunal was called upon to decide the novel question whether information about internal FOIA processes operated by public authorities was itself susceptible to disclosure under FOIA. The information in issue in the case related to some 48 requests which had been made by or on behalf of a particular media organisation. The Government sought to argue before the Tribunal that it was lawfully entitled to withhold the requested information on the basis that  it was exempt under section 36 FOIA (prejudice to conduct of public affairs). In a robust decision, the Tribunal rejected the Government’s appeal. It found that the information was not exempt under section 36. It also found that the Government had erred by treating the requested information, in effect, as a special class of information which was less susceptible to disclosure under FOIA than other types of information. The Government is now appealing the decision to the High Court.

Tribunal Decision:

https://www.11kbw.com/judgments/docs/HomeOfficeMoJvIC.pdf

Legal Week Article:

https://www.legalweek.com/Navigation/32/Articles/1197080/Freedom+of+Information+Act+Under+orders+to+disclose.html