QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1) The Home Office
(2) The Ministry of Justice
|- and -
|The Information Commissioner
Ms Anya Proops (instructed by the Office of the Information Commissioner) for the Respondent
Hearing dates: 22-23 June 2009
Crown Copyright ©
Mr Justice Keith:
The statutory framework
"Any person making a request for information to a public authority is entitled –
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him."
However, the duty to provide such information is not unlimited. Part II of the Act relates to information which is exempt from disclosure. Some of the exemptions in Part II are absolute, which means that information which falls within the ambit of those exemptions will be exempt from disclosure. However, many of the exemptions in Part II are qualified exemptions. Whether information of the kind which falls within the ambit of those exemptions will be exempt from disclosure turns on the application of the public interest test in section 2(2)(b). Thus, section 2(2) provides:
"In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that –
(a) the information is exempt information by virtue of a provision conferring absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information."
"Information … is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act –
(b) would, or would be likely to, inhibit –
(i) the free and frank provision of advice, or
(ii) the free and frank exchange of views for the purposes of deliberation, or
(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs."
In relation to information held by a government department in the charge of a Minister of the Crown, "a qualified person" for the purpose of section 36(2) means "any Minister of the Crown": see section 36(5)(a).
The relevant facts
"Please could you provide me with any documents relating to internal communication within Government and Government departments relating to the use of the Freedom of Information Act by Matthew Davis or John Connor Press Associates Ltd. These can be copies of documents sent by the Home Office or documents received by the Home Office."
The Home Office treated that part of Mr Davis' request which referred to him as a request for information about him, and they provided him with the information it held on him in relation to his previous requests on the basis that this latest request was a request for personal data under the Data Protection Act 1998 ("the DPA"). However, Mr Davis later went on to clarify that part of his request which referred to his company:
"… I am after any material that relates to my company John Connor Press Associates but NOT that information that I have already received ie. Any answers or correspondence that has already been sent to me. What I imagine might fall within the scope of this request is any internal communication about my company's requests and any communication on the way they should be handled. However, this is not an exclusive list and as stated I would like to see all communication that mentions my company's name but which has not been communicated to me."
The reason for this request was Mr Davis' belief that his requests for information were being handled differently from requests by other members of the public. He claimed to have evidence of that in respect of a particular request he had made. He was to say that it was "a clear abuse" of the Act for the Home Office to be anything other than "applicant blind" when it came to dealing with requests for information under the Act. It turned out that Mr Davis was right when he said that one of his requests for information had been handled differently from a similar request made by someone else, but the Home Office was to say that that had been because the requests had been handled by different departments and different judgments had been made.
"The Commissioner rejects the argument that disclosure would result in a lack of frankness which would adversely affect the quality of [freedom of information] decision-making. He also rejects the argument that decisions would be less adequately recorded. The Information Tribunal in DfES v The Commissioner and The Evening Standard (EA/2006/0006) was unimpressed with the argument that the threat of disclosure of civil servants' advice would cause them to be less candid when offering their opinions. It concluded that 'we are entitled to expect of … [civil servants] the courage and independence that … [is] … the hallmark of our civil service', since civil servants are 'highly educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions' and should not be easily discouraged from doing their job properly. The Commissioner does not believe that disclosure in this case would make officials responsible for providing advice and recording information less likely to perform their duties properly. Such public servants would be in breach of their professional duty as public servants should they deliberately withhold relevant information or fail to behave in a manner consistent with the Civil Service Code. It is a matter for the bodies concerned, including the Home Office, to ensure that their officials continue to perform their duties according to the required standards."
He went on to say that Mr Davis' request did not amount to an attempt to circumvent the enforcement mechanisms provided for by the Act, but "could have the positive effect of increasing [Mr Davis'] and public's confidence in the robustness of the public authority's internal procedures for handling information requests".
- section 31 (law enforcement)
- section 35 (formulation of government policy)
- section 40 (personal information)
- section 42 (legal professional privilege)
- section 43 (commercial interests).
The first preliminary issue: "meta-data"
- If it was being regarded as a factor of any significance, it would be coming close to creating a new category of exemption, not one which was provided for by the Act.
- The public needs to be confident that internal reviews are vigorously conducted and not self-serving. That can only be seen if members of the public have access to the raw material which shows how their original requests were handled.
- Relying just on an internal review or an appeal to the Commissioner would be unlikely to result in the disclosure of the information requested. The complainant would be likely to get at best a summary of how the request had been handled.
- An internal review by the Home Office and the adjudication of a complaint by the Commissioner would in the long run be much more labour-intensive and costly exercises than providing the information in the first place, and it would take much longer for complainants to know whether their original requests had been handled appropriately than the 20 working days provided for by section 10(1) for the "meta-data" to have been produced by the Home Office. Moreover, the Home Office would be relieved of the obligation to deal with requests for information and to bear the burden of the costs of providing it, and that burden would instead be passed to the Commissioner who would have to bear the costs of adjudicating on the complaint.
- There are limits to the procedure for making complaints to the Commissioner. His powers are limited to deciding whether the request was dealt with in accordance with the requirements of Part I of the Act. In other words, the process was intended to highlight where things had gone wrong, not to confirm that things were working properly. It was therefore not intended to address at least one of the important functions of the Act, namely to open up the process of government to public scrutiny.
- The Home Office argued that the Commissioner's powers and duties under sections 47-49 – in particular, his duty under section 47 to promote good practice by public authorities and their compliance with the Act and codes of practice, and his power under section 48 to issue appropriate recommendations to public authorities who he thinks are not complying with the codes of practice – were a factor to be placed in the balance. However, these powers were not intended to replace the duty on public authorities to provide information which is requested of it.
(i) Ms Sigley made the point that "'meta-requests' … are an arguably permissible, but irresponsible, use of the Act". However, she was to acknowledge that she was aware of only one case of the Act having been used irresponsibly, and one might say therefore that the solution was not to refuse to respond to "meta-requests" at all, but to consider them on a case-by-case basis. But more importantly, the Act deals with irresponsible requests in section 14(1), which permits public authorities to refuse requests for information which are vexatious. The concept of the irresponsible use of the Act was therefore said by the Commissioner to have no place outside section 14. The Tribunal agreed with that, and it gave this factor little weight since the Home Office had not thought it appropriate to invoke section 14 in relation to Mr Davis' "meta-request".
(ii) Ms Sigley said that the interests which "meta-requests" generally served are "private interests relating to an individual's desire to know the details of how his or her requests have been handled". The Tribunal did not express a view about the significance of that, but I would not have regarded it as a factor of any significance. The Act is "motive blind", and the fact that a request serves a private interest only is irrelevant save when it could be said to impact on the application of section 14.
(iii) Ms Sigley said that "meta-requests" could be used as a "backdoor method" of obtaining information which had previously been withheld. To avoid that, the public authority would have no choice but to embark on the time-consuming task of trawling through the documents which had been generated by those requests which had been refused in order to ensure that information which had previously been withheld was not disclosed. However, the Tribunal concluded that only limited weight could be given to this factor for the reasons advanced by the Commissioner, namely that there had been no evidence that "meta-requests" had been used to give "backdoor" access to information which had previously been withheld, and certainly no suggestion that that had been behind Mr Davis' "meta-request". If that was regarded in a particular case to be the reason why a "meta-request" had been made, consideration could be given to invoking section 14.
"In general, a statement in a judicial decision that the tribunal prefers one party's submissions to the other's is uninformative, since it does not explain why the former's submissions have been preferred …"
"The [Home Office has] put to us a number of public interest factors in favour of maintaining the exemption which are largely at a highly generalised level. There is considerable jurisprudence of the … Tribunal which concludes that such factors should focus on the particular public interest which the exception is inherently designed to protect, i.e. that a narrow approach should be taken. If a wide approach is generally allowed then this would undermine the basis of [the Act] which, in effect, promotes disclosure of information unless specific exemptions apply. It is not an Act designed to encourage ways of avoiding openness otherwise it would defeat the object of having freedom of information legislation. Therefore where generalised public interests are put forward in favour of maintaining an exemption, which do not necessarily go to the very heart of the exemption being claimed, then we will not usually give as much weight to these public interests as we would to inherent public interests. This is largely the position in this case.
In contrast we can give more weight to generalised public interests in favour of disclosure because inevitably the factors in favour of disclosure will be of this nature, inter alia, because there is an assumption or even presumption in favour of disclosure under [the Act]."
The second preliminary issue: exemptions other than section 36
"… the Tribunal considers that it was not the intention of Parliament that public authorities should be able to claim late and/or new exemptions without reasonable justification otherwise there is a risk that a complaint or appeal process could become cumbersome, uncertain and could lead public authorities to take a cavalier attitude to their obligations under [sections] 10 and 17."
"The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."