Anyone used to reading Freedom of Information Act 2000 (FOIA) decision notices from the Information Commissioner’s Office (ICO) will be familiar with this sort of wording:
The Commissioner has concluded that the public interest favours maintaining the exemption contained at section x(y) of FOIA. In light of this decision, the Commissioner has not gone on to consider the public authority’s reliance on section z(a) of FOIA.
In fact, a search on the ICO website for the words “has not gone on” throws up countless examples.
What lies behind this approach is this: a public authority, in refusing to disclose recorded information, is entitled to rely on more than one of the FOIA exemptions, because information might be exempt under more than one. An obvious example would be where information exempted from disclosure for the purposes of safeguarding national security (section 24 FOIA) would also likely to be exempt under section 31 (law enforcement).
One assumes that the ICO does this for pragmatic reasons – if information is exempt it’s exempt, and application of a further exemption in some ways adds nothing. Indeed, the ICO guidance for public authorities advises
you [do not] have to identify all the exemptions that may apply to the same information, if you are content that one applies
Now, this is correct as a matter of law (section 78 of FOIA makes clear that, as a general principle, reliance by public authorities upon the Act’s exemptions is discretionary), and the ICO’s approach when making decisions is understandable, but it is also problematic, and a recent case heard by the Information Tribunal illustrates why.
In Morland v IC & Cabinet Office (EA/2016/0078) the Tribunal was asked to determine an appeal from Morland, after the Cabinet Office had refused to disclose to him minutes of the Honours and Decorations Committee, and after the ICO had upheld the refusal. As the Tribunal noted
The Cabinet Office refused the Appellant’s information request in reliance upon s. 37 (1) (b) and s. 35 (1) (a) of the Freedom of Information Act 2000 (“FOIA”) [and the ICO] Decision Notice found (at paragraph 13) that the exemption under s. 37 (1) (b) was 5 engaged by the request and (at paragraph 25) that the public interest favoured maintaining the exemption “by a narrow margin”. The Decision Notice expressly did not consider the Cabinet Office’s reliance on s. 35 (1) (b). [emphasis added]
The problem arose because the Tribunal found that, pace the ICO’s decision, the exemption at section 37(1)(b) was not engaged (because that section creates an exemption to disclosure if the information relates to the conferring by the crown of an honour or dignity, and the information request related to whether an entirely new honour should be created). But what of the exemption at s35(1)(b)? Well, although it would not always be the case in similar circumstances, here the Tribunal and the parties were in a bind, because, as the Tribunal said
We are left with a situation where, as the Decision Notice did not reach a conclusion on that issue, none of the parties appear to have regarded s. 35 (1) (a) as being seriously in play in this appeal, with the effect that we have received limited argument on that issue
There is no power to remit a decision to the ICO (see IC v Bell [2014] UKUT 0106 (AAC) (considered in a Panopticonblog post here), so the Tribunal had to make findings in relation to s35, despite a “concern whether it is right to do so”. On the expressly limited evidence before it it found that the exemption was not engaged at the time of the request, and, accordingly, upheld Morland’s appeal, saying that it
[regarded] the failure of the Decision Notice to determine a key issue between the parties as rather unsatisfactory
Whether this will lead the ICO to revisit its apparent policy of, at least at times, focusing on only one of multiple claimed exemptions remains to be seen. It’s not often that I have sympathy with the Cabinet Office when it comes to matters of FOIA, but there is a modicum here.
Nonetheless, I think what this case does suggest is that a public authority should, when faced with an appeal of an ICO Decision Notice upholding a FOIA refusal, give strong consideration to whether it needs to be joined to the appeal (as, admittedly, the Cabinet Office was here) and to make sure that its response to the appeal (under part 27 of the Tribunal Rules) fully deals with all applicable exemptions, notwithstanding the contents of the Decision Notice. In this way, the Tribunal can, where necessary, take as fully-apprised a decision as possible on all of those exemptions.
The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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