Department of Health v The Information Commissioner and Another
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton, MR,Lady Justice Black,Lord Justice Davis |
| Judgment Date | 24 May 2017 |
| Neutral Citation | [2017] EWCA Civ 374 |
| Date | 24 May 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2015/1811 |
[2017] EWCA Civ 374
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
MR JUSTICE CHARLES
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Terence Etherton, MR
Lady Justice Black
and
Lord Justice Davis
Case No: C3/2015/1811
James Eadie QC and Ravi Mehta (instructed by Government Legal Department) for the Appellant
Robin Hopkins (instructed by The Information Commissioner) for the First Respondent
Hearing date: 9 May 2017
Approved Judgment
This appeal arises out of a request to the Department of Health ("the Department") under the Freedom of Information Act 2000 (" FOIA") by the second respondent, Mr Simon Lewis, a journalist, for the disclosure of the contents of the Ministerial diary of the Rt. Hon Andrew Lansley MP for the period 12 May 2010 to 30 April 2011.
Following the Department's disclosure of a redacted version of the diary, the first respondent, the Information Commissioner ("the Commissioner"), by a decision dated 26 March 2013 required the Department to disclose the majority of the withheld information. The Department appealed to the First-tier Tribunal (General Regulatory Chamber – Information Rights) (Andrew Bartlett QC, Alison Lowton, John Randall) ("the FTT"), which by their decision dated 17 March 2014 substantially upheld the Commissioner's decision. The Upper Tribunal (Administrative Appeals Chamber) (Mr Justice Charles) ("the UT") in a decision dated 30 March 2015 dismissed the Department's appeal from the FTT. This is an appeal from the UT's decision.
Mr Lewis has not appeared, and not been represented, at any stage of the appeals process following the decision of the Commissioner.
As the FTT recorded in their decision, this is the first time that judicial consideration has been given to the disclosure of a Ministerial diary under FOIA.
The statutory framework
Section 1 of FOIA creates a general right of access to information held by public authorities, as follows:
"1. General right of access to information held by public authorities.
(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 …"
Section 2 of FOIA sets out the effect on that general right of access to information of the absolute and other exemptions in Part II of FOIA. In particular, it sets out the public interest balancing test applicable in the case of those exemptions which are not absolute exemptions, and which are known as "qualified" exemptions. It provides as follows so far as relevant:
"2. Effect of the exemptions in Part II.
(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."
Section 3(2) of FOIA contains the following provision amplifying when a public authority "holds" information for the purposes of section 2. It provides as follows:
(2) For the purposes of this Act, information is held by a public authority if—
(a) it is held by the authority, otherwise than on behalf of another person, or
(b) it is held by another person on behalf of the authority."
The relevant exemption on which the Department relies for the purposes of this appeal is that in section 35 of FOIA which, so far as relevant, is as follows:
" 35 Formulation of government policy, etc.
(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,
…
(d) the operation of any Ministerial private office.
(2) …
(3) …
(4) In making any determination required by section 2(1)(b) or (2)(b) in relation to information which is exempt information by virtue of subsection (1)(a), regard shall be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to decision-taking.
(5) In this section—
…
"Ministerial communications" means any communications—
(a) between Ministers of the Crown, … and includes, in particular, proceedings of the Cabinet or of any committee of the Cabinet …
"Ministerial private office" means any part of a government department which provides personal administrative support to a Minister of the Crown …
…"
The decision of the FTT
The FTT heard argument and evidence on 18 and 19 November 2013. The evidence included witness statements and oral evidence from Sir Alex Allan, a distinguished former civil servant who was then the Prime Minister's Independent Adviser on Ministerial Interests, and Mr Paul Macnaught, the Director of Assurance within the Department and, as such, responsible for the Department's corporate governance, and who had been the Principal Private Secretary to the Secretary of State for Health during the whole of Mr Lansley's tenure.
The FTT delivered their written decision on 17 March 2014. Their decision is clear, conscientious and detailed. Only some of its content is relevant to the resolution of this appeal. I shall refer only to those parts.
The FTT dealt first with the less controversial exemptions before addressing the main disagreement between the parties on the impact of section 35.
In relation to non-Ministerial activities, the FTT recorded the Department's agreement that, when the entries were made, the date and time of the appointment were held by the Department within section 3(2) of FOIA because they were made for the purpose of avoiding conflicting Ministerial appointment. The FTT rejected the Department's contention that at the date of the request such entries were no longer "held" by the Department because it was merely providing electronic storage facilities for the information.
In relation to the exemption in section 35 of FOIA, the FTT held (at para. [28]) that the phrase "relates to" in section 35(1) "should not be read with uncritical liberalism as extending to the furthest stretch of its indeterminacy, but instead must be read in a more limited sense so as to provide an intelligible boundary, suitable to the statutory context"; and "[a] mere incidental connection between the information and a matter specified in a sub-paragraph of s.35(1) would not bring the exemption into play; it is the content of the information that must relate to the matter specified in the sub-paragraph".
Turning to the public interest balance for the purposes of section 35, the FTT made the following general observations at paragraph [48(b)] on the potential benefits and the potential harm of disclosure ("arising from the statutory wording and the experience of the FTT and the UT"):
"In many cases it would not be realistic or appropriate for the Tribunal to demand that the requester or the Commissioner spell out or explain in great detail the particular benefits of disclosure. Underlying FOIA is an assumption that there is a general public interest in the transparency of public authorities: see, for example, Evans v IC [2012] UKUT 313 (AAC), [127]–[133]. The public interest in disclosure has by its nature a wide ambit, since it includes the high level reasons why Parliament passed the Act and why disclosure is generally in the public interest because it promotes transparency, accountability, public confidence, public understanding, the effective exercise of democratic rights, and other related public goods. In many cases it will be possible for the benefits of transparency to be identified only at a high and generic level. On the other side of the equation the potential harms of disclosure, and hence the particular benefits of maintaining an exemption, may be very specific. The fact that the benefits of disclosure are high level and generic does not of itself mean that they are to be regarded as insubstantial when compared with more specific benefits of non-disclosure."
In relation to the nature of the public interests served by section 35(1)(a), (b) and (d), the FTT said the following about the presumptive weight to be given to those interests:
"74. The Commissioner submits, and the Department does not contest, that the broadly worded exemption in s35(1)(a) is not an exemption which has an inherent or presumptive weight independent of the particular circumstances: Office of Government Commerce v IC [2008] EWHC 774 (Admin), [79]. The Department submits, and the Commissioner does not contest, that in contrast, the greater specificity of the exemptions in s35(1)(b) and (d) can be taken as indicating some degree of inherent weight: APPGER v IC and FCO EA/2011/0049-0051, 3 May 2012, [146]. We bear these respective remarks in mind, but do not find them to be of much practical...
To continue reading
Request your trial
-
Appeal By William Frederick Ian Beggs Against The Scottish Information Commissioner
...No starting presumption in favour of disclosure applies when an exemption is engaged (Department of Health v Information Commissioner [2017] 1 WLR 3330 at paragraph 46). For these purposes there is no material difference between the statutes in force on either side of the border. The genera......
-
Lownie v The Information Commissioner, The Foreign and Commonwealth Office and The National Archives (GIA)
...other provisions of FOIA. Mr Callus referred to the decision of the Court of Appeal in Department of Health v Information Commissioner [2017] EWCA Civ 374, [2017] 1 WLR 3330 at paragraph citing the FTT’s approach to “relates to” in section 35(1). However, there the meaning of “relates to” w......
-
Minister for Health v Information Commissioner
...notice party drew the Court's attention to two decisions from England: Department of Health v. The Information Commissioner and Anor. [2017] EWCA Civ. 374, [2017] 1 W.L.R. 3330, a judgment of Sir Terence Etherton M.R. in the Court of Appeal and a decision of the Upper Tribunal in Universi......
-
Beggs v Scottish Information Commissioner
...Brooke v Information Commissioner's and British Broadcasting Corporation unreported and Department of Health v Information Commissioner[2017] 1 WLR 3330followed. Cases referred to: All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner [2013] UKUT 560 (AAC) Begg......