Department for Business, Enterprise & Regulatory Reform v Information Commissioner

JurisdictionEngland & Wales
CourtQueen's Bench Division
Judgment Date10 February 2009
Neutral Citation[2009] EWHC 164 (QB)
Docket NumberCase No: QB/2008/APP/0759
Date10 February 2009

[2009] EWHC 164 (QB)



Before : The Honourable Mr Justice Wyn Williams

Case No: QB/2008/APP/0759

Department for Business Enterprise and Regulatory Reform
(1) Dermod O'Brien
(2) the Information Commissioner

Mr Phillip Havers QC (instructed by The Treasury Solicitor) for the Appellant First Respondent appeared in Person

Ms Anya Proops (instructed by The Information Commissioner) for the Second Respondent

Hearing dates: 22 January 2009

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.


Mr Justice Wyn Williams:


This is an appeal against the decision of the Information Tribunal dated 7 October 2008. The appeal is brought pursuant to section 59 of the Freedom of Information Act 2000 (“ FOIA”). An appeal lies only upon a point of law.

Relevant Background


At all material times the First Respondent held an appointment as a recorder. On 1 July 2000 the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the Regulations”) came into force. Regulation 17 provides:—

Holders of judicial offices

17. These Regulations do not apply to any individual in his capacity as the holder of a judicial office if he is remunerated on a daily fee-paid basis.”


By virtue of his appointment as a recorder the First Respondent was a holder of judicial office. However he was also remunerated on a daily-fee basis.


On 13 April 2005 the First Respondent wrote to the Department of Trade and Industry. He asked the Department to disclose to him “all documents relating to the inclusion of what became Regulation 17 including, but not limited to, all letters, memoranda, emails, minutes and drafts produced internally or passing between DTI and the Lord Chancellor's Department/Department for Constitutional Affairs and/or the Treasury and/or the Department for Work and Pensions and/or any other persons or body relating to the form of, the reasons and justification for, and/or the validity of Regulation 17.”


By letter dated 17 May 2005 DTI refused to disclose the information which the First Respondent had requested. The justification for refusal was said to be the exemptions contained in sections 35(1)(a), 35(1)(b) and 42 of FOIA. The last paragraph of the letter, however, was in the following terms:—

“Although the Department has decided not to disclose the documents to you, it may helpful if I set out some of the background to Regulation 17. As you will appreciate, those who we customarily call part-time (or fee-paid) judicial office holders have not been considered in the past as workers for the purposes of domestic law, nor have they generally been considered as “part-timers” in the conventional sense of the term. The Government therefore took the view that certain of the benefits of the kind that are provided to part-time employees are not appropriate to the particular circumstances of fee-paid judicial office holders, the great majority of whom are practitioners otherwise engaged in the legal practice. The Government takes the view that fee-paid judicial officers are not workers for the purposes of the part-time work directive [a reference to the Part-Time Workers Framework Directive 1997/81/EC] and, on the basis of previous precedent, there would have been no expectation that the Regulations would have had application to fee-paid judicial officers. However, because of the uncertainty that arose in respect of other regulations, it was felt appropriate in implementing the Directive to include a specific exemption for the avoidance of doubt.”


The First Respondent was not satisfied with this response. Accordingly, as was his right, he sought an internal review by the DTI of its decision letter of 13 May 2005. The decision upon that review was given by letter of 21 June 2005. An exchange of letters referred to as B10 was released at this stage but essentially the Department maintained its refusal to disclose the information sought.


By letter dated 27 June 2005 the First Respondent sought an order from the Second Respondent compelling the disclosure of the documentation which he was seeking from the DTI. As I understand it, the Second Respondent considered whether 9 documents B1 to B9 should be disclosed.


The Second Respondent gave his decision on the application by a decision notice dated 8 January 2008. By this date the Appellant had become the relevant Government Department. The decision notice is a fully reasoned document but its effect is accurately set out in the Summary with which the notice commences.

“The complainant made a request to the former Department of Trade and Industry (DTI) for release of the information which led to the inclusion of Regulations 17 in the Part-Time Workers Regulations 2000. DTI refused to release the information relying upon the exemptions in sections 35 and 42 of the Act. DTI also sought to apply the exemption in section 36 in respect of one document after the Commissioners' investigations had commenced. The Commissioner has examined the exempt information and is satisfied that the public authority has correctly applied the exemptions above. However the Commissioner finds, in respect of one document withheld under section 35(1)(a) [document B2] that the public interest in maintaining the exemption does not outweigh the public interest in disclosure and accordingly orders release of it……


The First Respondent exercised his right of appeal to the Information Tribunal. Such a right arises under section 57 of FOIA. It is clear that the appeal before the Tribunal was fiercely contested. The First Respondent appeared in person. Both the Appellant and the Second Respondent appeared by Counsel. By the time of the hearing two further documents had been discovered by the Appellant. The Appellant resisted disclosure of B11 and B12. The Information Tribunal allowed the First Respondent's appeal and made the Order which is set out in its Decision Notice. In summary it ordered the Appellant to communicate to the First Respondent the information which he had requested, specifically, B1, B3 to B9, B11 and B12 and it also ordered the Appellant to use its best endeavours over the four weeks following the publication of its decision to find and retrieve any other information held by it of the description specified in the First Respondent's initial request.


I am told that a significant amount of further documentation was discovered. I am invited by the Second Respondent, particularly, to give directions to facilitate a speedy decision upon whether or not this further documentation must be disclosed.

Statutory Framework


Section 1 of FOIA provides as follows:—

“(1) 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.

(2) Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14.”

By section 2:—

“(1) (1) Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either–

(a) the provision confers absolute exemption, or

(b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information,

section 1(1)(a) does not apply.

(2) 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.

(3) For the purposes of this section, the following provisions of Part II (and no others) are to be regarded as conferring absolute exemption”

A number of exemptions are then listed.

Part II of the Act contains the following provisions which are relevant to the instant case. By section 35 the Act provides:—

“(1) Information held by a government department ……….. is exempt information if it relates to–

(a) the formulation or development of government policy,

(b) Ministerial communications,

(c) the provision of advice by any of the Law Officers or any request for the provision of such advice, or

(d) the operation of any Ministerial private office.”

“Ministerial communications” are defined under sub-section (5) to mean any communication between Ministers of the Crown and includes, in particular, proceedings of the Cabinet or any committee of the Cabinet.

Section 42 deals with legal professional privilege. Its provisions are: —

“(1) Information in respect of which a claim to legal professional privilege …….. could be maintained in legal proceedings is exempt information.

(2) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) in respect of which such a claim could be maintained in legal proceedings.”


It is common ground in this appeal that the provisions contained within section 35 and 42 are not provisions conferring an absolute exemption within section 2(3). It follows that they are exemptions to which section 2(2)(b)...

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