What considerations are relevant when deciding whether a Ministerial diary should be disclosed under FOIA? The decision of the First-tier Tribunal in Department of Health v Information Commissioner EA/2013/0087 is, perhaps surprisingly, the first Tribunal decision to address this issue. The judgment engages with a number of difficult issues: the Tribunal’s approach to Government evidence, the value of cross-examination in Tribunal hearings, aggregation of public interests under FOIA, and Parliamentary privilege. Hence it is of general importance, going beyond the intrinsic interest of its specific subject matter.
The request was for the Ministerial diary of the Rt Hon Andrew Lansley MP for the period 12th May 2010 to 30th April 2011, during which he was Secretary of State for Health. During this period, the Minister’s primary focus was the Department’s NHS reform programme. The requester was a journalist dealing with health issues. After the Department refused the request, and maintained its refusal on internal review, the requester complained to the Information Commissioner. In the course of the Commissioner’s investigation the Department disclosed a heavily redacted version of the diary.
The Commissioner ordered the Department to disclose the whole diary, with very limited redactions. On the Department’s appeal, the First-tier Tribunal upheld the Commissioner’s decision, with minor modifications reflecting points that were conceded by the Commissioner before the Tribunal.
The material before the Tribunal included witness statements from Sir Alex Allan and Paul Macnaught in support of the Department’s case. Sir Alex is a distinguished former civil servant, currently the Prime Minister’s Independent Adviser on Ministerial Interests. Mr. Macnaught is the Director of Assurance at the Department. The Commissioner had initially accepted that the hearing should take place without oral evidence, but on the Tribunal’s request Sir Alex and Mr. Macnaught attended the hearing and were questioned.
At the start of its decision, the Tribunal considered whether the entire contents of the diary were “held” by the Department, within the meaning of FOIA section 3(2). In this context it focused on the entries that related to non-Ministerial activities such as constituency work. The Department accepted that these entries were held by the Department when they were first made, but contended that by the time of the request the Department was merely providing electronic storage for this information. The Tribunal rejected this. There was no evidence of the Minister asking the Department to store this information; and even after the engagements had been fulfilled the information remained of potential value to the Department, e.g. if there was a need to check where the Minister had been at a particular time. The whole of the diary, therefore, was held by the Department and potentially disclosable under FOIA.
As to the personal data exemption (section 40(2)), there was little controversy except in relation to meetings between the Minister and constituency MPs acting as elected representatives. The Commissioner considered that the identity of the MPs should be disclosed; the Department did not concede this; and the Tribunal agreed with the Commissioner.
In relation to the national security exemption (ss 23(5) and 24(2)) there was no dispute between the Commissioner and the Department as to the information that ought to be withheld. The Tribunal considered that it would be sterile to address the areas of disagreement as to the precise application of these two exemptions.
The main area of controversy was the application of the exemptions in s 35(1)(a) (formulation or development of Government policy), s 35(1)(b) (Ministerial communciations), and s 35(1)(d) (operation of a Ministerial private office). By the time the Tribunal came to make its decision, the Commissioner accepted that these exemptions were applicable where claimed by the Department: so the issue was whether the public interest in maintaining the exemptions outweighed the public interest in disclosure.
At the start of its consideration of the public interest test, the Tribunal addressed a number of general issues.
It began by considering the value of oral evidence. The Tribunal referred to what was said about cross-examination by the Upper Tribunal in APPGER v IC and FCO  UKUT 560 (AAC). It interpreted the Upper Tribunal’s remarks as highlighting the need to consider whether cross-examination was necessary in the particular case, but not as ruling it out. The Tribunal considered that oral evidence and cross-examination could often be of great assistance; in particular it affirmed the value of testing the public authority’s evidence in this way where cases involved a difficult judgment on the balance of public interest. Cross-examination could be especially important where there was closed evidence.
Next, the Tribunal considered the extent to which deference should be given to Government evidence, and the relevance (if any) of the case law about public interest immunity (PII) when applying the public interest test under FOIA. The Tribunal rejected the contention that FOIA cases and PII cases should in all respects be approached in the same way. The remarks in the APPGER case about the relevance of PII were intended to emphasise the need, in both PII and FOIA cases, properly to identify the factors for and against disclosure; they were not meant to assimilate FOIA and PII in all respects. The Tribunal accepted that proper weight should be given to the expertise of Government witnesses; but, if “deference” meant that their evidence should be accepted unless it lacked any rational basis or was given in bad faith, then the Tribunal rejected the suggestion that it should show deference to that evidence. Broadly speaking, the Tribunal accepted that the Government’s expertise would carry greater weight in relation to state security or international relations than in s 35 cases, but this was not a hard and fast distinction.
When it came to striking the public interest balance, the Tribunal emphasised the need to identify the particular benefits and detriments, and their likelihood, on each side of the equation. At the same time, the Tribunal recognised the assumption underlying FOIA, that there is a general public interest in the transparency of public authorities; in many cases it would only be possible for the benefits of disclosure to be identified at a high and generic level. It indicated that the inclusion (e.g. in skeleton arguments) of a table summarising the various factors and their significance could often be of assistance.
The discussion of aggregation is particularly interesting. Since the decision of the European Court in the Ofcom case, Tribunals in EIR cases have been required to look at exemptions on an aggregated basis, considering the overall public interest balance for and against disclosure; there is as yet no definitive judgment as to whether the same approach applies under FOIA. Here, the Tribunal took a middle position between the submissions made for the Department and the Commissioner. It accepted (contrary to the Commissioner’s position) that aggregation applied under FOIA. But it took a more limited view of aggregation than did the Department: properly understood, Ofcom supported aggregation in EIR cases only where there was an overlap between the interests served by the different exemptions, and the same approach should be applied under FOIA.
In relation to Parliamentary materials, the Department had relied upon parts of chapter 6 of the House of Commons Justice Committee report: Post-legislative scrutiny of the Freedom of Information Act 2000 (3rd July 2012). The Tribunal considered whether it was proper to take this material into account, having regard to Parliamentary privilege. It discussed the decision of Stanley Burnton J in the OGC case, and the less restrictive approach to the use of Parliamentary materials adopted in the R (Age UK) v Secretary of State for Business, Innovation and Skills  EWHC 2336 (Admin): the Tribunal decided to follow the Age (UK) case. The Tribunal took into account the material relied upon by the Department, and found it helpful by way of background, but stated that it would be inappropriate to rely on any particular view expressed to or by the Parliamentary Committee.
The Tribunal then carried out the public interest balance in relation to the disputed information (i.e. the relevant Ministerial diary). In respect of both the interests favouring disclosure and the interests in maintaining the section 35 exemptions, the Tribunal summarised its conclusions in a table, setting out the factors taken into account and the impact of disclosure on those factors. For instance, in terms of the interests served by disclosure, it considered that there would be a “positive” impact in relation to “accountability: whether the public was getting good value from the Minister and whether he was properly carrying out his functions”. In terms of the adverse impacts of disclosure, it considered that a “modest additional burden” was likely by reason that “potentially misleading information would need to be explained”. A number of factors for and against disclosure were listed and assessed in a similar way.
In order to reach the conclusions set out in tabulated form, the Tribunal conducted a detailed assessment of the evidence given. It was critical of some of the evidence given by the Department’s witnesses, and was careful to explain why despite their expertise it was departing from that evidence in some regards: this is the practical application of the Tribunal’s discussion of deference, earlier in the decision. For instance, in relation to the public interest in favour of disclosure, the Department’s evidence was that this interest was substantially met by the publication of quarterly information releases about ministerial activity. The Tribunal was critical of this part of the evidence for giving insufficient weight to the fact that the information releases (unlike the diary) did not cover meetings by video conference or telephone. In relation to the public interests for maintaining the exemption, the Tribunal considered that some of the Department’s evidence was unrealistic: for instance, it did not accept that the prospect of disclosure of their diaries would encourage Ministers to arrange unnecessary meetings as window dressing in order to deflect potential public criticism. The overall effect of these criticisms, according to the Tribunal, was to reduce their confidence in the objectivity of the evidence and the accuracy and soundness of the witnesses’ evaluative judgments.
Overall, the Tribunal’s assessment was that the factors in favour of disclosure outweighed those in favour of maintaining the exemptions, but not by a particularly large margin. With limited exceptions – reflecting concessions made by the Commissioner at the hearing – it upheld the Commissioner’s decision in favour of disclosure.
Apart from the interest of its specific subject-matter, the case is of general importance in relation to the Tribunal’s approach to the public interest test, especially under section 35. It both exemplifies and defends the Tribunal’s established approach: i.e. the Tribunal will consider Government evidence carefully; witnesses will be cross-examined on their assessment of the factors for and against disclosure; the Tribunal will take account of witness expertise, but will ultimately form its own view; and the Tribunal will reject Government evidence where it thinks it appropriate to do so, notwithstanding the absence of witness evidence taking a contrary view. The central question on any appeal will be whether this approach requires modification.
Timothy Pitt-Payne QC