New from the Upper Tribunal: DWP work programmes, personal data. And security service algebra.

July 23rd, 2014 by Robin Hopkins

The Upper Tribunal has handed down a number of FOIA decisions in recent days. I refrain from comment or analysis, given my involvement in the cases (hopefully someone else from the Panopticon fold will oblige before long), but I post the judgments here for those who wish to read for themselves.

In DWP v IC and Zola [2014] UKUT 0334 (AAC), the Upper Tribunal dismissed the DWP’s appeal against this First-Tier Tribunal decision. The disputed information is a list of the identities of companies, charities and other organisations who host placements through the DWP’s work programmes for job seekers. Zola determination 21.07.14

In Farrand v IC and London Fire and Emergency Planning Authority [2014] UKUT 0310 (AAC), the Upper Tribunal dismissed an appeal concerning a report into a fire in a London flat, on the grounds that the requested information was the occupant’s personal data and no condition from Schedule 2 to the DPA was met. The decision discusses Common Services Agency and identification, legitimate interests, necessity and fairness. Farrand UT

Third, in Home Office v IC and Cobain (GIA/1722/2013), the Upper Tribunal has issued an interim decision allowing the appeal. This case concerns this problem: x + y = z, where z is a publicly known number, x is non-exempt information but y is exempt information (in this case, on section 23 grounds – security service information). Normally, the requester is entitled to non-exempt information, but here the automatic effect of disclosure would be to reveal the exempt information. What to do about this? As I say, an interim decision which I don’t analyse here. Have a go at the security service algebra yourself.

Robin Hopkins @hopkinsrobin

Universal Credit reports

March 31st, 2014 by Rachel Kamm

The Tribunal has ordered disclosure of information about Universal Credit, in three appeals which were heard together: John Slater v ICO and DWP EA/2013/0145; DWP v ICO and John Slater EA/2013/0148; and DWP v ICO and Tony Collins EA/2013/0149. The Tribunal dismissed both of DWP’s appeals and allowed Mr Slater’s appeal (subject to the removal of some names from the information).

The disputed information in Mr Collins’s appeal was a Project Assessment Review of the Universal Credit Programme (UCP), which was prepared by the Cabinet Office’s Major Projects Authority in early November 2011 and requested by Mr Collins on 1 March 2012.

In Mr Slater’s case, the disputed information was the Risk Register, Issues Register and the High Level Milestone Schedule for UCP and he made the request on 14 April 2012. As described by the Tribunal, “All three categories of document are essential risk management and planning tools in any large long – running project. They are designed to identify and reduce uncertainty and to gain uncompromising input from the widest possible spectrum of participants. UCP, on which work began in 2011, is scheduled for completion in 2017” (§22).

In response to both requests, the DWP relied on the exemption in section 36 FOIA, on ground that, in the reasonable opinion of a qualified person (the Minister), disclosure of the information under FOIA would be likely to inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation, or would be likely otherwise to prejudice the effective conduct of public affairs and that the balance of the public interest was in favour of maintaining this exemption.

The ICO found that the qualified exemption in section 36 was engaged, but that the balance of the public interest favoured disclosure of the Project Assessment Review, Issues Register and  High Level Milestone Schedule (but not the Risks Register).

On appeal, the Tribunal agreed with DWP and the ICO that the exemption in section 36 was engaged i.e. it was reasonable for the Minister to conclude that disclosure would be likely to inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation, or would be likely otherwise to prejudice the effective conduct of public affairs. The test was whether there was a realistic possibility, not a 51%+ probability (§49).

Turning to the public interest, the Tribunal attached great importance “not only to the undisputed significance of UCP as a truly fundamental reform but to the criticism and controversy which it was attracting by the time of these requests in March and April, 2012″ (§55). The Tribunal also noted “the unfailing confidence and optimism of a series of press releases” and that UCP was described as on track when milestones had not been achieved on time. It commented that “Where, in the context of a major reform, government announcements are so markedly at odds with current opinion in the relatively informed and serious media, there is a particularly strong public interest in up to date information as to the details of what is happening within the programme, so that the public may judge whether or not opposition and media criticism is well – founded” (§56). It took into account the costs of the programme and the size of the IT interface with local authority systems (§57). Publication of the disputed information upon completion of UCP, “would be a wholly inadequate answer to the demands for transparency” (§58).

On the other hand, the Tribunal acknowledged that the ‘safe space’ requirement can apply in section 36 (as well as section 35) cases (§59). The Tribunal did not take into account evidence which had been given by the Department of Health in a different Tribunal appeal, but which this Tribunal had not seen and which had not been tested in cross examination §61). There was no evidence that disclosure of another risk document, the Starting Gate Review, had inhibited frank discussion (§62). In this context, the need for a degree of deference to the experience of senior public authorities was not as pressing as when tackling questions of security or foreign policy: “The duty of the Tribunal is to consider government evidence on issues such as these carefully, conscious of the experience and expertise of the witness, but using its own knowledge of appeals of this kind, of institutions and behaviour in the workplace to determine whether government information requires the protection claimed, considering the importance of the subject matter to the public. We are not persuaded that disclosure would have a chilling effect in relation to the documents before us“ (§63).

As to diversion of resources if the disputed information was disclosed, the Tribunal commented that ”a programme such as UCP required at the outset a clear public relations strategy and a substantial staff to handle the inevitable flow or even torrent of inquiries and bad news stories which such an important change must attract” and that delivery of UCP may be facilitated by good communication (§64).

Having reached the above general conclusions, the Tribunal considered each of the requested documents in turn. It found that the public interest was in favour of disclosing the information, taking into account in particular that “Ordinary people, properly informed, are capable of grasping why a document dwells on problems rather than successes” and that whilst there may be some prejudice to DWP, the public interest required disclosure. It dismissed DWP’s appeals and allowed Mr Slater’s appeal (subject to the removal of some names from the information), thereby ordering disclosure under FOIA of each of the documents.

Julian Milford represented DWP and Robin Hopkins represented the ICO.

Rachel Kamm, 11KBW




Update on recent Tribunal decisions part 4: qualified exemptions and the public interest

November 13th, 2012 by Robin Hopkins

In the final part of our round-up of recent decisions of the First-Tier Tribunal, Panopticon looks at the qualified exemptions, the public interest and a few other loose ends.

Section 36: Cherie Booth, Ryanair and Council emails

Sutton v IC and Nottingham City Council (EA/2012/0044) concerned the Council’s decision to amend its internal ‘sign off’ procedures for responses to FOIA requests, following an incident in which its response to a request about the cost of Councillors’ refreshments was considered to have been inadvertently misleading and lacking in context. The requester asked for internal emails about the proposed change. The Council withheld some of those emails, contending that they contained the sort of robust, free and frank exchange of views for which a safe decision-making space was needed. In a decision which many local authorities will find heartening, the Tribunal agreed.

The background to Sittampalam v IC and Ministry of Justice (EA/2011/0277) is the comments made by Cherie Booth QC, sitting as a recorder, when sentencing a Muslim defendant. Her comments appeared to suggest that his faith was a mitigating factor in his defence. They caused a stir, were reported in the media and attracted complaints, including by the National Secular Society, to the Office for Judicial Complaints. The OJC concluded that Ms Booth’s comments did not constitute judicial misconduct, though she was to receive “informal advice” on the issue.

A request under FOIA was made for all information about this OJC investigation and any action taken. The public authority relied on s. 36 – prejudice to the free and frank exchange of views, provision of advice or conduct of public affairs. The ‘reasonable opinion of the qualified person’ (the prerequisite for engaging s. 36) was obtained after the public authority’s holding reply to the request and after the statutory time for compliance – but before the public authority’s formal notice of refusal. The Tribunal rejected the requester’s contention that s. 36 was not engaged because of the timing of the opinion. As to the public interest, the Tribunal was satisfied us that the requester’s suspicions about the OJC ‘covering up’ the complaint or trying to minimise the impact of its conclusions on account of Ms Booth being the wife of Tony Blair were unfounded. Nor were the OJC’s press statements inconsistent with its letters to the National Secular Society. The appeal was dismsised.

Whereas alleged ‘late reliance’ on s. 36 succeeded in Sittampalam, it was unsuccessful before the Tribunal (at the preliminary hearing stage) in Ryanair v IC and Office of Fair Trading (EA/2012/0088). The opinion was obtained prior to the internal review. The Tribunal concluded that:

“Considering issues of reasonableness it is difficult for the Tribunal to be satisfied that the section 36 opinion of the qualified person – given its timing in respect of this appeal – is not an ex post facto conclusion or, more accurately, not tainted with the perception that that could be the case. That goes to the heart of its reasonableness.”

Sections 41 and 43: casinos and vikings

London Borough of Newham v IC (EA/2011/0288) concerned the Council’s award of the licence to operate a large casino at Westfield shopping centre in Stratford. The requester, a law firm acting on behalf of the unsuccessful bidder, made a request under FOIA for documents relating to the successful bid. The Council withheld some of those, relying on s. 44 (statutory bar on disclosure under the Code of Practice for the Gambling Act 2005), s. 41 (information obtained in confidence) and s. 43 (prejudice to commercial interests). The Commissioner was unpersuaded and ordered disclosure.

The Council’s appeal was partially upheld and partially dismissed. The statutory bar was held not to extend beyond the conclusion of the tender process. S. 43(2) was engaged, with the public interest favouring disclosure of some (relating for example to security arrangements and the financial guarantee offered by the winning bidder, as well as records of some of the negotiation discussions, which the Tribunal found would be unsurprising to any commercial rival) but not others (tender details which were deemed more commercially sensitive). Similarly, s. 41 succeeded for some information but not all (some, for example, was effectively in the public domain; some had not been obtained from outside the Council). Bidders could reasonably expect confidentiality not permanently, but for a reasonable time following the bidding process – here the request was made within that reasonable time, which counted in the Council’s favour.

The disputed information in Pim v IC and Down DC (EA/2012/0078) was a business plan submitted by the Magnus Viking Association in respect of their proposed Viking re-enactment centre, and correspondence between the Council and Magnus. The Council relied on regulation 12(5)(e) of the EIR (confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest). The Commissioner and Tribunal agreed: extensive research and consultation had gone into the specialist information, which could be used by Magnus’ competitors in a viking re-enactment market which, while not flooded with competition, was growing. There was a strong interest in maintaining trust between the commercial parties.

Prejudice to the course of justice

In McCullough v IC and Northern Ireland Water (EA/2012/0082), the requester sought detailed technical information about vibrations measurements relating to sewer upgrade works in Belfast. The Commissioner agreed with the public authority that regulation 12(5)(b) of the EIR (adverse effects on the course of justice) was engaged and that the public interest favoured its maintenance. A key issue was that disclosure, it was argued, would prejudice NI Water’s position when defending prospective legal claims about the sewer works vibrations, including by the requester (though there was a dispute as to whether the requester did in fact intend such proceedings).

The Tribunal disagreed. It was “not persuaded that purely factual information such as this could ever adversely affect the course of justice” and did “not accept that early disclosure of this technical information would prejudice NI Water in any way that they would not be prejudiced in the normal course of discovery in litigation by such information”. Regulation 12(5)(b) was therefore not engaged, in the Tribunal’s view.

It also did not think that information could be withheld just because of potential prejudice to a public authority’s litigation position: “The implications of implementing such a policy could, in some circumstances amount to a cover up, and in our view would be contrary to the spirit and intent of the FOIA and EIR legislation and further, contrary to the public interest. We are of the view that it is in the public interest that justice is done and that the correct result emerges from litigation, not that a public authority should necessarily be successful, just because it is a public authority.” The exact meaning of these last words is not clear, but the decision will nonetheless raise many a public authority eyebrow.

Robin Hopkins

Wheat and chaff: advice to ministers on answering parliamentary questions

June 1st, 2012 by Robin Hopkins

Some years ago, the government commissioned the Tasker Report into the conduct of senior managers in the prison service, which had given rise to extensive and adverse publicity. A number of parliamentary questions were asked about the report. As is the usual practice, civil servants prepared advice for use by the prisons minister, Maria Eagle, in responding to those questions.  Kikugawa v IC and MOJ (EA/2011/0267) involved a request for copies of those advice notes. The MOJ refused to disclose them, relying on s. 36(2)(b) FOIA (prejudice to the free and frank provision of advice or exchange of views), the prerequisite for which is the issuing of a ‘reasonable opinion’ by the ‘qualified person’ (here, the minister) as to the likelihood of those prejudices.

The Tribunal found the exemption to be engaged. Points to note as regards the ‘reasonableness’ of the opinion this, which points towards a margin of discretion:

“The opinion must be her opinion so she cannot simply sign a submission without reading it, though nobody suggests that she did so. Deciding to approve a submission by flipping a coin (an example given by the ICO) does not fail the test because the opinion adopted is unreasonable but because the minister formed no opinion at all. The same principle would apply, though perhaps less vividly, where the minister received a submission advocating this opinion which offered no reason, however slight, to form it. Nobody can truly form an opinion where he or she is deprived of any shred of information on the issues involved. Provided the opinion is formed by the minister, however, it may be debatable how far the Tribunal is entitled to inquire into the mental processes adopted. A degree of caution may be appropriate when approaching the supposed requirement for a “reasonable opinion reasonably formed”.

The requester said the opinion had been biased. The Tribunal disagreed:

“The test is reasonableness, not the apparent objectivity of the QP. If the QP has formed an untenable opinion because of a conflict of interest, then the opinion does not satisfy s.36(2), not because it is the opinion of a biased QP but because it is unreasonable. In fact, the complaint that it is the minister concerned with the PQs whose opinion is sought is unrealistic since it is she who is by far the best placed to form a judgement on the matter. Equally, it is hard to see how officials who had no involvement whatever with the PQs or the background facts could provide an informed submission.”

The requester alleged that the submissions to the minister had been “bogus”, false or “deliberately misleading”. Although the Tribunal noted colourfully that “it is inevitable that, in the stream of advice and comment passed to ministers in the process of answering hundreds of PQs there will be chaff as well as wheat”, it did not find the requester’s allegations to be well founded.

Finally, this was one of those (increasingly rare, it seems) cases where the Tribunal saw force in the ‘chilling effect’ argument:

“The Tribunal is frequently pressed by government departments with claims as to the “chilling effect” on frank communication of disclosure of internal discussions and reports. The Tribunal is not always impressed by them. Here, though, we are dealing with a vital and sensitive interface between minister and civil servant. This is an area of government where the need for confidentiality is clear because the points that need to be made to a minister may be based on evidence of varying strength and may involve strong criticism of the questioner or another member or third party. The official offering advice may be understandably reluctant to make them public, whilst properly concerned that they should be before the minister. It is for the minister to decide what should be used, what rejected, what is too tenuous to be relied upon.”

For all these reasons, the Tribunal firmly rejected the appeal.

Robin Hopkins


December 6th, 2011 by Robin Hopkins

In William Thackeray v IC (EA/2011/0069), the requester asked the Home Office for information it holds about Scientology. The resultant appeal to the Tribunal is the latest consideration of the FOIA exemptions for prejudice to the effective conduct of public affairs (s. 36) and legal professional privilege (s. 42). The appeal failed, and reliance on both these exemptions was upheld.

The s. 42 point was short: can litigation privilege be relied upon where judicial proceedings which have been formally instituted are subsequently withdrawn? Answer: yes. The established test with regard to the application of this kind of privilege is whether there is a reasonable prospect of litigation existing at the time of the creation of the document.

Thackeray is an important decision for its review of the general principles underpinning reliance on s. 36. Public authorities often run into difficulty in seeking to obtain the opinion of the qualified person (the precondition for engaging that exemption). Particular issues arise as to the timing of and basis for the QP’s opinion, i.e. when is the latest an opinion can be obtained, and what material must the QP consider if his or her opinion is to be reasonable?

The Tribunal in Thackeray considered these two issues. As to timing, it addressed this particular question: can the opinion of the QP be obtained after the statutory 20-day period for responding to a request, but before the conducting of the public authority’s internal review? In part, this is about whether an internal review is capable of remedying flaws in an original refusal notice. Here there was a refusal in June 2009, and the QP’s opinion was obtained in November 2009. The Appellant argued that this delay undermined the reasonableness of that opinion.

In answering that question, the Tribunal made the following general observations about the use of s. 36:

  • There is a strong argument for saying that the qualified person should be at or towards the very top level of accountability.
  • This responsibility cannot be delegated.
  • The precise role of the opinion is to state whether, in that person’s view, the prejudices under s. 36 are likely to arise from disclosure. An opinion is not about the public interest.
  • The Commissioner’s role is to assess that opinion for reasonableness, akin to a Wednesbury analysis in judicial review claims. The Commissioner can only reject the substance of the opinion if it was one that no reasonably qualified person would have taken.
  • The manner and timing of the obtaining of that opinion can be considered as part of that scrutiny of reasonableness.
  • To obtain the opinion ‘late’ (i.e. after the initial refusal) is not akin to ‘late reliance’ upon an exemption.
  • The provision of the opinion by the internal review stage is sufficient. The Tribunal endorsed the approach in McIntyre v IC and MoD (EA/2007/0061), where it was held that an opinion can suffice to engage s. 36 where it is reasonable in substance, even if it was arrived at in a flawed or unreasonable manner.

As to content (i.e. the question of what must be before the QP when he or she forms her opinion), the Tribunal considered whether the QP must give consideration to the application of that FOI exemption, and whether he or she must consider the actual disputed information before reaching their opinion. This arises particularly in relation to government ministers, who in practice often make such decisions based on submissions from civil servants, rather than on the basis of actual consideration of the underlying material for themselves.

Does such an approach undermine reliance on s. 36? No, said the Tribunal. Failure to inspect the disputed information will not without more render the opinion redundant or unreasonable. It is sufficient if it is shown that the qualified person’s opinion was based on a proper understanding of the disputed information. The civil service approach, and other such approaches to obtaining the opinion of a QP, survives intact.

Robin Hopkins


July 12th, 2010 by Anya Proops

Section 36(2) FOIA provides for a number of qualified exemptions, all of which are essentially designed to ensure that disclosures under FOIA do not unduly prejudice the effective conduct of public affairs. The exemptions provided for under section 36(2) are somewhat unusual in that the question whether they are engaged turns upon whether a ‘qualified person’ has given a ‘reasonable opinion’ that disclosure of the particular information would or would be likely to prejudice or inhibit one of the particular matters provided for under s. 36(2) (e.g. it would inhibit the free and frank provision of advice or the free and frank exchange of views). In other words, it is the creation of the reasonable opinion which itself operates to engage the particular s. 36(2) exemption.

The application of s. 36(2) has caused some difficulties in practice. In particular, difficulties have arisen where the public authority has sought to rely on s. 36(2) in circumstances where the reasonable opinion was not in fact generated until sometime after the request was refused by the public authority. In the case of Roberts v IC (EA/2009/0035), the tribunal held that s. 36(2) will not be engaged in these circumstances. This is because, if the information was not in fact exempt at the time the refusal notice was sent out (i.e. because the relevant reasonable opinion was not in existence at that time), it cannot be rendered exempt ex post facto (i.e. as a result of a reasonable opinion having been created after the request has been responded to). See further my paper which examines the Roberts judgment which you can find here.

The restrictive approach to s. 36(2) adopted in Roberts has recently been approved in the case of Chief Constable of Surrey Police v IC (EA/2009/0081). Interestingly, the tribunal in this case went on to highlight the significant dangers for a public authority if it fails to keep a record of the opinion as and when it is reached. Following an earlier decision in University of Central Lancashire v IC (EA/2009/0034), the tribunal in the Chief Constable case effectively held that a public authority will struggle to rely on the exemptions afforded under s. 36(2): (a) if it does not keep a record of the opinion which has been reached and, further, (b) if, in the context of any record which it has made, it fails to identify the particular sub-sections of s. 36(2) which the qualified person has concluded are engaged. Notably, in reaching this conclusion, the tribunal confirmed that it was not the function of the Commissioner to speculate about or forage around for opinions which might have been reached by the qualified person where there was no good evidence that such opinions had in fact been formed at the time the request was being responded to (see in particular paragraphs 54-59 of the decision). 11KBW’s Akhlaq Choudhury appeared on behalf of the Chief Constable.


June 30th, 2010 by Timothy Pitt-Payne QC

Various changes were made to FOIA by the Constitutional Reform and Governance Act 2010, which was passed during the “wash up” at the end of the last Parliament.  See section 46 of and Schedule 7 to the Act. In particular:

• The exemption in section 37(1) of FOIA (relating to communications with the Sovereign and with other members of the Royal Family) was extended. In relation to the Sovereign and the heir to the Throne, the exemption was made absolute .

• The period at which a record becomes a “historical record” was altered (this is often referred to as the “30 year rule”). Under FOIA as originally enacted, a record became a historical record at the end of 30 years beginning with the year following that in which it was created: see FOIA section 62(1). Information contained in a historical record could be exempt by virtue of sections 28, 30(1), 32, 33, 35, 36, 37(1)(a), 42 or 43: see FOIA section 63(1). Under the 2010 Act the period of 30 years is reduced to 20 years . Provision is made for a 10 year transitional period in introducing this change . However, in respect of section 36 (so far as it relates to certain information concerning Northern Ireland), section 28, or section 43, the time after which these exemptions can no longer be relied upon will remain 30 years not 20 years .

The reforms to the 30 year rule followed the Dacre Review, published on 29th January 2009 (see our earlier post here).

As yet it remains unclear when, or whether, these amendments will be brought into force.  This is a significant piece of unfinished business left over from the last Parliament.

The Open University? Application of FOIA to University Course Materials

December 11th, 2009 by Anya Proops

The question of whether and to what extent FOIA can be used as a device to open up public access to educational resources is obviously an important one for our society. It is a question which was very recently considered in the case of University of Lancashire v IC (EA/2009/0034). In that case, the Tribunal was called upon to decide whether a university (UCLAN) had acted unlawfully in refusing a request made under FOIA for disclosure of course materials relating to a BSc degree course in homeopathy. The request had been refused initially on the basis that disclosure of the course materials would damage UCLAN’s commercial interests (application of s. 43 FOIA). Subsequently, when the matter came before the Commissioner, UCLAN also argued that it was entitled to refuse disclosure because of the risks disclosure would pose to the effective conduct of its affairs (application of s. 36 FOIA). The Commissioner held that UCLAN had erred in refusing to disclose the course materials, save that he accepted that certain elements of the course materials, and particularly empirical case studies, could be withheld under s. 41 FOIA (the confidential information exemption). UCLAN appealed the Commissioner’s decision to the Tribunal.

The Tribunal dismissed UCLAN’s appeal. In summary, it held that:

·       with respect to the application of s. 43 FOIA (the commercial interests exemption):

o      despite being a charitable institution, UCLAN did have ‘commercial interests’ and those commercial interests were engaged in respect of teaching materials produced for its degree courses (§31);

o      however, it could not be said that, at the time of the request (July 2006), there was any real and significant risk that disclosure of the homeopathy course materials would prejudice UCLAN’s commercial interestsand accordingly s. 43 was not engaged (§§32-39);

o      in any event, had s. 43 been engaged, the public interest balance under s. 2 FOIA would have weighed firmly in favour of disclosure (§§40-50).

·       with respect to the application of s. 36 FOIA (the public affairs exemption), the exemption was not engaged because the opinion of the qualified person relied on for the purposes of this section was neither reasonable in substance nor reasonably arrived at (§§52-62).

The following aspects of the Tribunal’s decision are particularly worthy of note:

·       in line with the earlier Student Loans case, the Tribunal took a broad approach to the concept of ‘commercial interests’ for the purposes of s. 43. It readily accepted that universities could have commercial interests in the courses which they ran;

·       UCLAN argued before the tribunal that the course materials were exempt from disclosure not least having regard to the facts that: (a) they contained a significant amount of third party copyrighted information and (b) disclosure of that copyrighted information under FOIA would disincline third parties from contributing to course materials in the future. The tribunal rejected these arguments. It did so on the basis that: (1) disclosure of information under FOIA would not in any way have diluted any copyright enjoyed by the third parties and (2) there was in any event no sufficient evidence before the tribunal to substantiate UCLAN’s case that disclosure of the copyrighted material would have had an alienating effect on third party contributors.

·        the Tribunal highlighted the degree of rigour which must be applied when the relevant qualified person is seeking to formulate an opinion which engages s. 36. It also highlighted that the public authority must itself provide evidence that the person who reached the relevant opinion was a ‘qualified person’ for the purposes of s. 36 (§53);

·       on the question of the public interest test, the Tribunal found that there were strong public interests in disclosure. Those interests included both: (1) a general public interest in members of the public being able to test the educational value of publicly funded degree courses and (2) a specific public interest in accessing information relating to a homeopathy degree course which was by its very nature inherently controversial.

The parties were represented by 11KBW’s Tim Pitt-Payne (counsel for UCLAN) and Anya Proops (counsel for the Commissioner).

Section 36 FOIA – Use it or Lose it

November 24th, 2009 by Anya Proops

The question of whether public authorities can rely on exemptions which have been claimed for the first time before the Commissioner or the Information Tribunal is a notoriously controversial one (see further e.g. Home Office & Ministry of Justice v IC where the Home Office sought to argue, against existing Information Tribunal orthodoxy, that a public authority could rely on an exemption no matter how late in the process – see further my earlier post on this judgment). The issue of late reliance is however particularly acute in respect of s. 36 FOIA (exemption where disclosure would be likely to prejudice the effective conduct of public affairs). S. 36 provides for a rather unusual exemption in that, in contrast with other exemptions under FOIA, the exemption is only engaged where a relevant opinion has been reached by the ‘qualified person’. The fact that the exemption under s. 36 will only be engaged in circumstances where a particular event takes place (i.e. the relevant opinion has been reached), a question arises as to whether that event must take place prior to the request being responded to (i.e. via the refusal notice) in order for s. 36 to be engaged. This issue has recently been considered by the Tribunal in the case of Roberts v IC & DBIS (EA/2009/0035), 20 November 2009. In that case, the Tribunal held that because information could only be withheld if it was exempt at the time of the request (or more precisely at the time the request was being responded to), it followed that an opinion which was reached after the refusal notice was sent out could not constitute a valid opinion for the purposes of s. 36. The restrictive approach to s. 36 adopted in Roberts is likely to be regarded as a controversial decision and may well be appealed. In the meantime, public authorities should probably err on the side of caution and aim to ensure that, wherever possible, any s. 36 opinion is obtained prior to the release of the refusal notice. It is in any event worth noting that, in the earlier case of Student Loans Company v IC, the Tribunal held that it did not have powers under s. 58 FOIA to consider the application of s. 36 because: (a) no reliance had been placed on that section before the Commissioner and (b) the Tribunal only had powers to decide whether the Commissioner’s decision was lawful (i.e. having regard to the case which was put before the Commissioner).

‘Meta-requests’ and Late Exemptions – High Court Judgment

August 3rd, 2009 by Anya Proops

In Home Office & Ministry of Justice v IC (EA/2008/062), the Information Tribunal held that the Home Office had erred in refusing to disclose information which revealed how internally it had dealt with some 48 FOIA requests which had previously been made by a particular media organisation. In particular, it held that the Home Office had not been entitled to treat that information as exempt under section 36 FOIA (prejudice to public affairs). The High Court has now upheld the Tribunal’s decision on appeal by the Home Office – see Home Office & Ministry of Justice v IC [2009] EWHC 1611 (Admin). Notably, the High Court declined to decide the question of how the Tribunal should respond to a public authority which sought to invoke exemptions for the first time before the Tribunal. The Home Office had sought to argue, contrary to existing Tribunal orthodoxy (see particularly Department for Business and Regulatory Reform v IC & Friends of the Earth (EA/2007/0072)), that the Tribunal had no discretion to refuse late reliance on exemptions and that a public authority was, in effect, automatically entitled to invoke new exemptions at any stage in the process. The Commissioner invited the Court to approve the orthodox position. Keith J held that he ought not to decide this particular issue given that it had effectively become academic on the facts of the appeal.