Secretary of State for the Home Department v Information Commissioner
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keith |
| Judgment Date | 06 July 2009 |
| Neutral Citation | [2009] EWHC 1611 (Admin) |
| Date | 06 July 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/12241/2008 |
[2009] EWHC 1611 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Justice Keith
Case No: CO/12241/2008
Mr James Eadie QC and Mr Gerry Facenna (instructed by the Treasury Solicitor) for the Appellants
Ms Anya Proops (instructed by the Office of the Information Commissioner) for the Respondent
Hearing dates: 22–23 June 2009
Mr Justice Keith:
Introduction
Requests for information from public authorities have been commonplace since the Freedom of Information Act came into force. But the right to information which the Act created has spawned a number of requests for information about the way a previous request has been handled. Within government these requests about previous requests are called “meta-requests”, and the information being requested is referred to as “meta-data”. The Home Office is unaware of any case in which a government department has agreed to provide such information under the Act. This case is all about such a meta-request made to the Home Office. It comes to the Court as an appeal from the Information Tribunal. All references in this judgment to sections of an Act are references to sections of the Freedom of Information Act 2000 (“the Act”) unless otherwise stated.
The statutory framework
The Act came into force on 1 January 2005. It was Parliament's response to calls for the ending of secrecy in government. Its core provision is section 1(1), which provides:
“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.”
The provision in Part II which is relevant for present purposes is section 36(2). That contains one of the qualified exemptions to which the public interest test in section 2(2)(b) applies. Section 36(2) provides, so far as is material:
“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).
It is important to emphasise that information about how previous requests were handled is not accorded any special treatment in the Act. There is no provision in the Act which specifically permits requests about such information to be refused. Indeed, the Information Commissioner (“the Commissioner”) is concerned about calling such requests “meta-requests”. Such a label could give the impression that they have a status which the Act does not give them. The Information Tribunal (“the Tribunal”) recognised that when it said in its decision in this case that “Parliament intended that meta-requests should be dealt with in the same way as any other requests otherwise Parliament would have provided for this, which in our view they have not done so”.
There is an elaborate structure for challenging the refusal by a public authority of a request for information on the basis that the information is covered by one of the exemptions. The person or body who requested the information may apply to the Commissioner for a decision whether the request was dealt with in accordance with the requirements of Part I of the Act. If the Commissioner decides that the information should have been provided, he will identify what steps the public authority must do by way of compliance. An appeal against the Commissioner's decision lies to the Tribunal. The Tribunal is entitled to review any findings of fact on which the Commissioner's decision was based, and if it considers that the decision was flawed, it must allow the appeal or substitute such other decision as the Commissioner could have made. An appeal against the Tribunal's decision lies to the High Court, but only on a point of law.
The relevant facts
The previous requests for information. Between 10 February 2005 and 4 January 2007, Matthew Davis, a journalist who works for John Connor Press Associates Ltd (a news and picture agency), made 48 requests for information from the Home Office. They ranged from the serious to the frivolous. Much of the information Mr Davis sought was held by the National Offender Management Service, which was part of the Home Office until May 2007 when it became part of the Ministry of Justice (which is why the Ministry of Justice has been included in these proceedings), but I shall refer to the Home Office and the Ministry of Justice collectively in this judgment as the Home Office. The Home Office says that where it was possible for the information to be disclosed compatibly with the Act, it was disclosed to Mr Davis, but some of the information requested was not.
The current request. On 4 January 2007, Mr Davis sent an e-mail to the Home Office which requested information about his previous requests. The request was in these terms:
“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.
When responding to a request for information, the practice of the Home Office (and I imagine other government departments as well) is to provide copies of the actual documents which contain the information requested. The documents which would have had to be supplied to Mr Davis if the information he requested was to be supplied to him ran to about 1,250 pages and comprised many internal Home Office memos, e-mails and working documents created by officials within various sections of the Home Office. Some of the documents related to previous requests for information which had not been responded to by the time of the “meta-request” of 4 January 2007. Moreover, at the time Mr Davis' request was referred to the Tribunal, the Home Office had realised that some of them may contain information exempt from disclosure under provisions of the Act other than section 36(2). For example, one of Mr Davis' previous requests had been for information about prison security, and the Home Office may have been entitled to withhold that information under section 31(1)(f) on the basis that...
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