Department of Health GIA 2410 2014
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Charles |
| Judgment Date | 30 March 2015 |
| Neutral Citation | 2015 UKUT 159 AAC |
| Subject Matter | Information rights |
| Respondent | (1) The Information Commissioner and (2) Simon Lewis |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 2410 2014 |
| Appellant | Department of Health |
[2017] AACR 30
(Department for Health v Information Commissioner and Simon Lewis
[2017] EWCA Civ 374)
Mr Justice Charles CP GIA/2410/2014
30 March 2015
CA (Sir Terence Etherton MR, Black and Davis LJJ)
24 May 2017
Freedom of information – ministerial diary – whether public interest balancing exercise properly conducted – whether information held by Department or exempt information
Mr Lewis, a journalist, asked the Department of Health to disclose the contents of the ministerial diary of Andrew Lansley MP under the Freedom of Information Act 2000 (FOIA) and received a redacted version. Mr Lewis complained to the Information Commissioner who held that the majority of the withheld information should be disclosed and that decision was upheld by the First-tier Tribunal (F-tT). The Upper Tribunal (UT) dismissed the Department’s subsequent appeal, holding, amongst other things, that the information was held by the Department when it was entered into the ministerial diary and continued to be so at the date of the request, that non-ministerial information was gathered for departmental purposes and that the public interest in disclosing the information outweighed that in maintaining the exemption. The Department of Health appealed against that decision to the Court of Appeal relying upon the exemptions in section 35 of FOIA concerning the formulation of government policy.
Held, dismissing the appeal, that:
- the correct approach when assessing competing public interests under FOIA was to identify the actual harm or prejudice and the actual benefits that the proposed disclosure would or might confer or promote. That required an appropriately detailed proof, explanation and examination of both the harm or prejudice and the benefits that the proposed disclosure of the relevant material would or might cause or promote. The F-tT had carried out an evaluative balancing exercise, and there was sufficient reasoning supporting and explaining its conclusion in favour of disclosure (paragraphs 43 to 44, 46 to 47, 50 to 52)
- the question of whether a government department held information in a diary had to be judged in relation to each entry or piece of information in it to determine whether there was an appropriate connection between that information and the Department. It seemed obvious that, subject to any absolute or qualified exemptions in the Act, the information in the diary was held by the Department within section 3(2) during such time as Andrew Lansley had been a Minister, even if it had also been held for him for other purposes, including personal or constituency matters. The termination of his Ministerial position did not change that assessment, since it remained relevant, or potentially relevant, for the Department to know where he had been and with whom, should there be a political, journalistic or historical interest raised with the Department in relation to those matters (paragraphs 54 to 57)
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
James Eadie QC and Ivan Hare, instructed by the Treasury Solicitors, appeared for the appellant.
Robin Hopkins, instructed by the Solicitor to the Information Commissioner, appeared for the first respondent.
The second respondent was not represented and not present.
Decision: This appeal is dismissed
REASONS
Introduction
- This appeal relates to information contained in the ministerial diary of Andrew Lansley MP for the period 12 May 2010 to 30 April 2011. During that period his principal policy focus was on the NHS reform programme. The information was requested by the second respondent in June 2011 under the Freedom of Information Act 2000 (FOIA). He now lives abroad. Contact with him proved difficult but was achieved. He did not attend the hearing before me but informed the Upper Tribunal in writing that he supported the arguments advanced by the Information Commissioner. In response to his request, the appellant (the Department) disclosed a redacted version of the diary
- By his decision dated 26 March 2013 the Information Commissioner ordered the Department to disclose the majority of the withheld information in the redacted diary and the Department appealed to the First-tier Tribunal (the F-tT). By its decision dated 17 March 2014 (the F-tT Decision) the F-tT varied but substantially upheld the Information Commissioner’s decision. The variations were agreed by the Information Commissioner during the hearing and resulted in some of the requested information being withheld. The second respondent did not take part in the hearing before the F-tT.
- The Department has appealed the F-tT Decision. Its grounds of appeal are that the F-tT erred in law:
i) in its approach to the assessment of the competing public interests relating to the application of the qualified exemption in section 35(1)(a), (b) and (d) of FOIA, firstly by rejecting the Department’s submission that the F-tT’s approach to the Department’s evidence should reflect that adopted in public interest immunity (PII) cases, secondly by proceeding on the basis that the public interest in disclosure can be generally set out, and
ii) by concluding that the entries relating to non-ministerial activities were held by the Department within the meaning of section 3(2) of FOIA.
- The F-tT gave permission to appeal on ground (i) and I shall deal with it first. I gave permission for ground (ii) because as the Department argued it raised an issue of principle that at least potentially may have widespread application. The F-tT covers a number of other legal issues in the F-tT Decision. My lack of comment on them does not indicate agreement or disagreement with its conclusions.
- The parties had envisaged that the hearing before the F-tT would be conducted on the basis of written evidence and submissions but the F-tT requested that Sir Alex Allen, a distinguished civil servant and then the Prime Minister’s Independent Adviser on Ministerial Interests and Mr Paul Macnaught, the Director of Assurance at the Department give oral evidence, and they did so. Both had made open witness statements addressing the public interest issues. Mr Macnaught had also made a closed witness statement. The only difference between that and his closed witness statement being that the latter referred to specific examples in the diary. The F-tT heard evidence from Sir Alex in open session and from Mr Macnaught in closed session. In fact no party was in practice excluded because the second respondent was not present or represented.
- The F-tT records that it found the oral evidence helpful and that it materially influenced its decision. Its approach reflects that taken by many F-tTs before and I understand after the decision of the Upper Tribunal in All Party Parliamentary Group on Extraordinary Rendition (APPGER) v Information Commissioner and the Foreign and Commonwealth Office [2013] UKUT 560 (AAC) (which became available to the F-tT during the hearing before it).
- The Department do not assert that the F-tT erred in law by hearing oral evidence. Rather the thrust of its argument on the first limb of ground (i) is that the F-tT erred in law by not properly acknowledging and giving appropriate weight to the expertise and institutional competence of the Department and its witnesses.
- The Information Commissioner (with the support of the second respondent) argued that the F-tT did not err in law.
The general approach to the application of FOIA
- There is high authority for the proposition that a purposive and liberal approach should be taken to the interpretation and application of FOIA. For example in Sugar v BBC and Another [2012] UKSC 4, [2012] 1 WLR 439 (Sugar (No 2)) Lord Walker says at [75] to [77]:
“[75] I respectfully agree. In my judgment the correct view is that (as Lord Neuberger MR put it at para 44):
‘once it is established that the information sought is held by the BBC for the purposes of journalism, it is effectively exempt from production...
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