Will there be blood?

The First-tier Tribunal (Information Rights) (FTT) has overturned a decision by the Information Commissioner that the Northern Ireland Department for Health, Social Services and Public Safety (DHSSPS) should disclose advice received by the Minister of that Department from the Attorney General for Northern Ireland regarding a policy of insisting on a lifetime ban on males who have had sex with other males (“MSM”) donating blood.

On 11 October 2013 the Northern Ireland High Court handed down judgment in a judicial review application, challenging the decision of the Minister and the DHSSPS maintain the lifetime ban. The challenge arose because, in 20011, across the rest of the UK, the blanket ban which had existed since 1985 had been lifted.

DHSSPS lost the judicial review case, and lost relatively heavily: the decision of the Minister was unlawful for reasons that i) the Secretary of State, and not the Minister, by virtue of designation under the Blood Safety and Quality Regulations 2005, was responsible for whether to maintain or not the lifetime ban, ii) similarly, as (European) Community law dictated that this was a reserved matter (an area of government policy where the UK Parliament keeps the power to make legislate in Scotland, Northern Ireland and Wales), the decision was an act which was incompatible with Community law, iii) the Minister had taken a decision in breach of the Ministerial Code, by failing to refer the matter, under Section 20 of the Northern Ireland Act 1998, to the Executive Committee, and iv) although a ban in itself might have been defensible, the fact that blood was then imported from the rest of the UK (where the ban had been lifted) rendered the decision irrational.

Running almost concurrently with the judicial review proceedings was a request, made under the Freedom of Information Act 2000 (FOIA), for advice given to the Minister by the Attorney General for Ireland. The FOIA exemption, at section 42, for information covered by legal professional privilege (LPP) was thus engaged. The original decision notice by the Information Commissioner had rather surprisingly found that it was advice privilege, as opposed to litigation privilege. The IC correctly observed that for litigation privilege to apply

at the time of the creation of the information, there must have been a real prospect or likelihood of litigation occurring, rather than just a fear or possibility

and, because the information was dated October 2011, and leave for judicial review had not been sought until December 2011

at the time the information was created, ltigation was nothing more than a possibility

But one questions whether this can be correct, when one learns from the FTT judgment that DHSSPS had been sent a pre-action protocol letter on 27 September 2011. Again rather surprisingly, though, the FTT does not appear to have made a clear decision one way or the other which type of privilege applied, but its observation that

when the request was made judicial review proceedings…were already underway

would imply that they disagreed with the IC.

This discrepancy might lie behind the fact that the FTT afforded greater weight to the public interest in favour of maintaining the exemption. It was observed that

[the existence of the proceedings] at the time of the request seems to us to be an additional specific factor in favour of maintaining the exemption. It seems unfair that a public authority engaged in litigation should have a unilateral duty to disclose its legal advice [para 19]

Additionally, the fact that the advice was sought after the decision had been taken meant that it could give “no guide to the Minister’s motives or reasoning”.

Ultimately – and this is suggestive that the issue was finely balanced – it was the well-established inherent public interest in the maintenance of LPP which prevailed (para 21). This was a factor of “general importance” as found in a number of cases summarised by the Upper Tribunal in DCLG v The Information Commissioner and WR (2012) UKUT 103 (AAC).

Because the appeal succeeded on the grounds that the section 42 exemption applied, the FTT did not go on to consider the other exemptions pleaded by DHSSPS and the Attorney General – sections 35(1)(a) and 35(1)(c), although it was very likely that the latter at least would have also applied.

Aggregation of public interest factors

Because the other exemptions did not come into play, the FTT’s observation on the IC’s approach to public interest factors where more than one exemption applies are strictly obiter, but they are important nonetheless. As all good Information Rights people know, the European Court of Justice ruled in 2011, that when more than one exception applies to disclosure of information under the Environmental Information Regulations 20040 (EIR), the public authority may (not must)  weigh the public interest in disclosure against the aggregated weight of the public interest arguments for maintaining all the exceptions. The IC does not accept that this aggregation approach extends to FOIA, however (see para 73 of his EIR exceptions guidance) and this was reflected in his decision notice in this matter, which considered separately the public interest balance in respect of the two exemptions he took into account. He invited the FTT to take the same approach, but, said the FTT, had the need arisen, the IC would have needed to justify how this “piecemeal approach” tallied with the requirement at section 2(2)(b) of FOIA to consider “all the circumstances of the case”. Moreover, the effect of the IC’s differing approaches under EIR and FOIA means that

there will be a large number of cases in which public authorities, the ICO and the Tribunal will be required to make a sometimes difficult decision about which disclosure regime applies in order to find out how to conduct the public interest balancing exercise

I am not aware of anywhere that the IC has explained his reasoning that aggregation does not apply in FOIA, and it would be helpful to know, before the matter becomes litigated (as it surely will).

And I will just end this rather long and abstruse piece with two personal observations. Firstly, donating blood is simple, painless and unarguably betters society – anyone who can, should donate. Secondly, denying gay men the ability, in this way, to contribute to this betterment of society is absurd, illogical and smacks of bigotism.

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Filed under Environmental Information Regulations, Europe, Freedom of Information, Information Commissioner, Information Tribunal, Upper Tribunal

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