Department for Work and Pensions v Information Commissioner and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones,Sir Stephen Richards,Master of the Rolls |
| Judgment Date | 27 July 2016 |
| Neutral Citation | [2016] EWCA Civ 758 |
| Docket Number | Case No: C3/2014/3212 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 July 2016 |
[2016] EWCA Civ 758
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
GIA25602013
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Lloyd Jones
and
Sir Stephen Richards
Case No: C3/2014/3212
Mr. Andrew Sharland (instructed by Government Legal Department) for the Appellant
Mr. Robin Hopkins (instructed by Information Commissioner) for the First Respondent
The Second Respondent did not appear and was not represented.
Hearing date: Monday 13 th June 2016
Approved Judgment
This appeal concerns requests made to the Department for Work and Pensions, ("DWP") the appellant in this appeal, under the Freedom of Information Act 2000 (" FOIA") for the communication of the identities of some of the organisations, primarily charities and businesses, who were at the time of the requests hosting placements under certain schemes aimed at promoting the employment prospects of jobseekers. The DWP withheld the identities of those placement hosts. Following complaints, the Information Commissioner, the first respondent in this appeal, issued decision notices ordering the disclosure of the information. The DWP's appeals to the First-tier Tribunal were dismissed in a determination dated 17 May 2013. A further appeal by the DWP to the Upper Tribunal was dismissed in its determination dated 15 July 2014 ( [2014] UKUT 0334 (AAC)).
The FOIA requests with which this appeal is concerned relate to three of the appellant's employment schemes, the Mandatory Work Activity scheme ("MWA"), Work Experience and the Work Programme ("WP"). These schemes and other similar schemes are often collectively referred to as "workfare". Under the MWA and WP schemes placement hosts, which may be charities, private sector companies or public authorities, receive a benefit in the form of free labour. Placements are arranged by contractors and sub-contractors who receive payment from the appellant. In the majority of cases, referral to the schemes is mandatory and, at the time of the relevant requests, non-compliance was subject to a sanction in the form of a loss of Jobseeker's Allowance for specified periods. The schemes affect many thousands of jobseekers. By January 2012 nearly 50,000 claimants had been referred for placements on MWA. In the case of MWA there was an express commitment to placements benefiting local communities. Workfare schemes generally attracted considerable controversy and media attention.
Prior to January 2012 the appellant had, in response to FOIA requests, released the names of placement hosts involved in various workfare schemes. Boycott Workfare, a pressure group which has campaigned against workfare schemes, used these FOIA responses to compile a list of names of placement hosts. It published this list ("the Boycott Workfare List") on its website. The version on its website at 16 February 2012 described their goal as to "expose and take action against companies and organisations profiting from workfare". That version of the list contained some 200 names but only a fraction of those were placement hosts in the MWA and WP schemes.
In January and February 2012 The Guardian newspaper published a series of articles criticizing the workfare schemes and certain organisations that hosted placements under such schemes. It referred to the increasing pressure on such organisations to withdraw from the schemes.
The requests which are the subject of this appeal were made in January 2012. Each requested the name of placement hosts participating in either MWA or WP. In February 2012 the DWP refused these requests, relying on section 43(2) of the Freedom of Information Act on the ground that disclosure would prejudice the commercial interests of the DWP and those delivering services on its behalf.
The requesters complained to the Information Commissioner. The DWP then obtained an opinion from Mr. Chris Grayling, then Minister for Employment, which enabled it to rely, in addition, on section 36(2)(c) of the Freedom of Information Act.
In August 2012, in three almost identical decision notices, the Information Commissioner found that section 43(2) was not engaged. The Commissioner accepted that section 36(2)(c) was engaged but he found that the public interest weighed in favour of disclosure.
The appellant appealed to the First-tier Tribunal against the three decision notices and the three appeals were joined. As it was entitled to, the DWP relied before the First-tier Tribunal on further documentary evidence which had not been before the Commissioner. This included, in particular:
(1) Forty responses to a survey conducted by the appellant, from placement hosts, contractors and sub-contractors.
(2) Five longer letters from contractors who were particularly opposed to disclosure.
(3) Various materials referred to as case studies relating in particular to three charities that had been publicly named by Boycott Workfare, namely Sue Ryder, PDSA and the Salvation Army.
In its determination the First-tier Tribunal held that section 43(2) was not engaged and that, although section 36(2)(c) was engaged, the public interest favoured disclosure.
With the leave of the First-tier Tribunal the appellant appealed to the Upper Tribunal on the following grounds
(1) The First-tier Tribunal failed to give adequate reasons for its conclusion that section 43(2) was not engaged.
(2) The First-tier Tribunal misdirected itself as to the test to be applied under section 43(2).
(3) The First-tier Tribunal failed to take into account material evidence and/or reached perverse conclusions in relation to such evidence on section 43(2).
(4) The First-tier Tribunal erred in law in its approach to the public interest generally and in relation to section 36(2)(c) in particular.
The Upper Tribunal (Administrative Appeals Chamber) (Judge Wikeley) dismissed the appellant's appeal on all four grounds. Judge Wikeley refused permission to appeal to the Court of Appeal. However, on 12 June 2015 Vos LJ granted permission to appeal.
Legal Provisions.
Section 1, FOIA 2000 provides in relevant part:
(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.
Section 2(2) FOIA provides:
(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.
Section 36(2) which appears in Part II of the Act provides:
(2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act—
(a) would, or would be likely to, prejudice—
(i) the maintenance of the convention of the collective responsibility of Ministers of the Crown, or
(ii) the work of the Executive Committee of the Northern Ireland Assembly, or
(iii) the work of the Cabinet of the Welsh Assembly Government.]
(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.
Section 43(2) which appears in Part II of the Act provides:
(2) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).
Ground 1: The Upper Tribunal erred in law when it concluded that the First-tier Tribunal had not misdirected itself as to the law.
The DWP relies on what are said to be two distinct errors of law. The first concerns the meaning of "commercial interests" in section 43(2). The second concerns the meaning of "prejudice" within section 36(2) and section 43(2).
Commercial interests.
On behalf of the DWP Mr. Andrew Sharland submits that the First-tier Tribunal, and the Upper Tribunal when dismissing the Appellant's appeal, misdirected itself as to the meaning of "commercial interests" in relation to the placement hosts.
Before the First-tier Tribunal the DWP's case as to prejudice to the commercial interests of the placement hosts was that some placement hosts had suffered or would be likely to suffer prejudice as a result of the disclosure of names because they would be likely to suffer a loss of customers (which would result in a loss of income and profits) and, in the case of charities, a reduction in the amount of donations. The appellant also contended that in certain cases, disclosure of the names of placement hosts pursuant to a FOIA request would lead to aggressive lobbying led by social media groups which was likely to result in the placement hosts withdrawing from MWA or WP and thus losing volunteers who are a valuable resource.
In support of the contention that these interests constitute "commercial interests" within section 43(2) the DWP relies on the decisions of the Information Tribunal in Student Loans Company Limited v Information Commission, EA/2008/0092, at...
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