Recent developments in freedom of information - part one

Given that the Conservative-Lib Dem coalition agreement provides that the new government intends not merely to retain but also to ‘extend the Freedom of Information Act to increase transparency’, it appears that FOIA is here to stay. There is therefore every reason for information lawyers to stay abreast of recent developments in the FOIA field. In the first of a three-part series, Anya Proops highlights the key rulings.

Aggregating Public Interest Considerations

It will often be the case, under both FOIA and the EIR, that a public authority will seek to justify its decision not to disclose particular information to an applicant on the basis of more than one exemption. In such cases and particularly where the exemptions in issue call for an application of the public interest test, a question arises as to whether:

1. it is open to the public authority to aggregate all the public interest considerations which arise under the different exemptions in a single public interest balancing exercise; or
2. the authority must conduct discrete public interest balancing exercises under each individual exemption, taking into account only the public interest considerations which are relevant to the particular exemption in issue.

This is a question which the Supreme Court was recently called upon to answer in the case in IC v Office of Communications [2010] UKSC 3. In Ofcom, which was decided under the EIR, a request had been made for disclosure of information as to the location of mobile telephone base stations throughout the UK. Ofcom decided that the information was exempt from disclosure under both r. 12(5)(a) (the public safety exception) and r.12(5)(c) (the intellectual property exception) EIR.

An issue arose in the case as to whether it was open to Ofcom to aggregate all the public interest considerations relevant to these two very different exemptions into a single public interest balancing exercise, particularly having regard to the wording of the public interest test as provided for in r.12(1)(b) EIR. Both the tribunal and the High Court held that such aggregating of the public interest considerations was impermissible, (EA/2006/0078) and [2008] EWHC 1445 (Admin).

In a rather controversial judgment, the Court of Appeal overturned the High Court’s judgment and concluded that aggregation was permissible under the EIR, [2009] EWCA Civ 90. The Commissioner, who was seeking to argue against the aggregation approach, appealed to the Supreme Court. It is presently largely accepted that, if aggregation is permissible under r. 12(1)(b), it is likely that it is also permissible under s. 2(2) FOIA, not least given the similarity of wording in the two provisions and the fact that EIR is generally regarded as a more permissive regime that FOIA.

Many hoped that the Supreme Court would clearly determine this issue so that the position would be clear-cut in the context of extant or forthcoming appeals. However, those hopes were dashed when the Supreme Court delivered a judgment which confirmed that it was referring the issue to the European Court of Justice. The referral was made on the basis that this was an issue which required a determination to be made under the Directive 2003/4/EC on public access to environmental information, the EIR itself having been enacted to give domestic effect to the Directive.

Notably, the reference to the ECJ notwithstanding, the Supreme Court did confirm, by a majority of three to two, that it favoured the approach adopted by the Court of Appeal.

The majority’s views, as outlined in Lord Mance’s judgment, were based on the analysis set out below.

(1) Article 4(2) of the Directive provides that ‘In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal’ (emphasis added).

(2) The reference in Article 4(2) to the ‘particular case’ required the factors relevant to the particular case to be take into account but did not require different exceptions to be treated separately.

(3) In terms of the ‘interest served by the refusal’, given that all facets of the interests in disclosure may be weighed on one side of the balance, all facets of the interests served by the refusal can and should equally be weighed on the other side.

(4) The fact that the interests in favour of the refusal may be diverse was itself a factor counting in favour of their all being weighed together, although consideration may need be given in any particular case to whether there was a risk of double counting.

(5) The fact that some exceptions provided under individual paragraphs of r. 12 (particularly the multiple exceptions provided for under paragraph (b) of Art 4(2)) were themselves so diffuse in nature also tended to indicate that a cumulative approach was legitimate.

The minority rejected this analysis on the basis that:

(1) at the very least, it cannot have been intended that the very different types of exceptions provided for under Art 4(1) and Art 4(2) would have been treated cumulatively. Reading Article 4 in light of the Aarhus Convention makes clear that the exceptions contained in Article 4(1) and 4(2) are intended to be alternative;

(2) there is no common factor behind the exceptions which enables any sensible accumulation. The exceptions serve disparate interests which must each be weighed separately. Thus, a public interest in limiting criminal activities impacting on public safety which is insufficient to outweigh the public interest in disclosure cannot sensibly be put into the balance in favour of maintaining some other exception;

(3) accumulating disparate public interests would lead to incongruities and it was far from clear how this would work in practice; (see further the case of South Gloucestershire v IC)

(4) the natural language of the Directive regards each exception as a separate potential reason for refusal. If the interest in maintaining the particular exception is insufficient to outweigh the public interest in disclosure, it ceases to be relevant. If it is sufficient to outweigh the public interest in disclosure, the information will be exempt under that exception;

(5) the illogic in Ofcom’s case is that it could produce a result whereby, although no individual exception applies, viewed collectively two or more exceptions apply.

In light of these developments, we remain for the time being in a state of limbo as to whether the aggregate approach is lawful under the EIR. As a precautionary measure, public authorities may wish to consider whether, in the context of individual cases, they are able to confirm in their refusal notices that the result would be the same even if an aggregate approach had not been adopted.

Protecting Confidential and Commercially Sensitive Information

Both the EIR and FOIA contain exemptions which are designed to afford a measure of protection where disclosure of the requested information may breach confidences or otherwise damage commercial interests. Thus:

• r. 12(5)(e) EIR provides for a qualified exception where disclosure would adversely affect ‘the confidentiality of commercial information where  such confidentiality is provided by law to protect a legitimate economic interest’;
• s. 43 FOIA provides for a qualified exemption where disclosure of the information: ‘would or would be likely to prejudice the commercial interests of any person (including the public authority holding it)’;
• s. 41 FOIA provides for an absolute exemption in respect of information obtained by the authority from another person where the disclosure of the information would give rise to a ‘breach of confidence actionable by that or any other person’.

The application of these exemptions has been considered in a number of recent cases.

In South Gloucestershire CC v IC (EA/2009/32), a request had been made for disclosure of information contained in a report which the local authority had commissioned from a consultant. The report had been commissioned to assist the council in adopting a robust position in its negotiations with a developer (Bovis) in respect of a major section 106 planning agreement. The request for disclosure of the report had been made by Bovis. The council refused to disclose the requested information on the grounds that it was exempt under r. 12(4)(e) (the internal communications exception) and r. 12(5)(e) (the confidential/commercial information exception) EIR.

The council’s reliance on r. 12(5)(e) was based in particular on concerns that, if the report were to be disclosed, Bovis would seek to exploit the information in the report to undermine the council’s negotiating position, with the result that either the council (and by extension taxpayers) would end up having to make a larger investment in the relevant development than would otherwise have been the case or the entire development would become stymied.

The Commissioner upheld Bovis’ complaint against the council’s decision. On appeal, the Commissioner sought to argue that the disputed information was not exempt under r. 12(5)(e) because:

• r. 12(5)(e) would only be engaged in respect of information where the information was confidential and the duty of confidentiality was owed by the authority to a third party (i.e. it would not apply to the authority’s own confidential information);
• in any event, it could not be accepted in the circumstances that disclosure of the information would risk damaging any commercial interests; and, furthermore,
• with respect to the application of the public interest test, any public interest in maintaining the exemption would be outweighed by the public interest in disclosure.

The tribunal rejected all of these arguments. It held that r. 12(5)(e) would apply in respect of confidential information, irrespective of whether it was or was not the authority’s own confidential information. In reaching this conclusion, the tribunal contrasted the language of r. 12(5)(e) with the more restrictive language found in s. 41 FOIA.

It also concluded that the evidence presented to it by the council’s witnesses demonstrated: (a) that the commercial risks identified were real and significant risks, such that r. 12(5)(e) was engaged and, further, (b) that, not least in view of the significance of those risks, the public interest balance tipped in favour of maintaining the exception.

The tribunal rejected the council’s case that the report was an ‘internal communication’ for the purposes of r. 12(4)(e) EIR). In reaching this conclusion, the tribunal distinguished the case from Secretary of State for Transport v IC (EA/2008/0052). Notably, the tribunal is currently hearing an appeal on the question of whether correspondence and minutes of a meeting between Lord Hunt and the Mayor of London constitute ‘internal communications’ for the purposes of r. 12(4)(e) and 12(8), the Commissioner having found that they were not on the ground that the Mayor’s office is a public authority which is separate from government (DEFRA v IC & Birkett (EA/2009/0106).

In University of Central Lancashire v IC (EA/2009/0034), a request was made for disclosure of university course materials in respect of a BSc degree course in homeopathy. UCLAN refused to disclose the materials on the basis they were exempt under two FOIA provisions: s. 43 (commercial interests) and s. 36 (prejudice to commercial affairs). The Commissioner concluded that the university’s refusal was unlawful. The university appealed to the tribunal.

On appeal, the university advanced a number of arguments as to why the information was exempt under s. 43, including not least that any disclosure of the course materials would be exploited by competitors so as to deprive UCLAN of the competitive advantage it would otherwise enjoy in respect of its homeopathy course and that disclosure would increase the risk that copyright in the information would be infringed.

The Tribunal rejected the university’s case under s. 43. The following aspects of the judgment are worthy of note:

(1) The tribunal rejected the Commissioner’s argument that, as a charitable educational institution UCLAN could not have commercial interests for the purposes of s. 43. It held that, on the available evidence, modern universities were required to function very much on a commercial basis and, hence, they could have commercial interests for the purposes of s. 43. In reaching this conclusion, the tribunal accepted the university’s argument that the concept of ‘commercial interests’ should be construed broadly.

(2) The tribunal was not persuaded on the evidence that disclosure of the course materials would create a real and weighty risk of prejudicing the university’s commercial interests for the purposes of s. 43. It held, in effect, that the risk that the university would lose any meaningful competitive advantage was in the circumstances more illusory than real. It also held that concerns about breach of copyright were overstated. In reaching the latter conclusion, the tribunal took into account that disclosures of information under FOIA would not dilute or extinguish any copyright enjoyed by any third party and that competitors would be reluctant to infringe copyright in the material given that this would expose them to civil and possibly also criminal penalties in accordance with the Copyright Act 1998.

(3) The tribunal concluded obiter that, even if s. 43 had been engaged, the public interest would have weighed in favour of disclosure. This was so not least given: (a) the strong public interest in members of the public being able to examine for themselves the quality of publicly funded courses and, further, (b) the intensity of public debates over the validity of homeopathy as a form of treatment.

(4) Notably, in the course of reaching its conclusions on the public interest test, the tribunal rejected arguments advanced by UCLAN with respect to the Re-Use of Public Sector Information Regulations 2005. In essence, the regulations impose on public authorities a scheme under which they must consider whether to permit third parties to re-use their own copyrighted documents. The aim of the regulations is to facilitate the sharing of information generated by public authorities, essentially in the public interest. The university argued that it was significant that universities had been exempted from the scope of the regulations, not least because this suggested that universities had a particular interest in protecting their commercially sensitive information. The tribunal did not find this argument to be persuasive, particularly in view of the facts that: (a) disclosure under FOIA did not itself equate to the university authorising any re-use of its copyrighted information; and (b) a relevant explanatory memoranda did not suggest that universities had been excepted from the regulations because there were concerns about loss of competitive advantage.

(5) The tribunal also rejected the university’s case under s. 36. In reaching this conclusion, the tribunal rejected arguments advanced by the university to the effect that, if it responded to this particular FOIA request, it would have to respond to many similar FOIA requests and this would have a disabling effect on its administration. The tribunal considered that such an argument was fundamentally at odds with the philosophy of public access which underpinned FOIA.

Whilst the judgment in UCLAN was clearly reached on the basis of its own particular facts, it does raise interesting questions about whether FOIA can operate to permit access to university course materials more generally.

In Higher Education & Funding Commission for England v IC & Guardian News (EA/2009/0036), a request was made for disclosure of information relating to the state of buildings at higher education institutions (HEIs). The information in question had been obtained by HEFCE from the HEIs. HEFCE refused to disclose the information on the ground that its disclosure would give rise to an actionable breach of confidence and, hence, it was exempt under s. 41 FOIA.

The Commissioner concluded that s. 41 was not engaged in respect of the information because the disclosure would not give rise to an actionable breach of confidence. In reaching this conclusion, the Commissioner had in mind the requirements for an actionable breach of confidence identified by Megarry J in Coco v AN Clark (Engineers) Ltd [1968] FSR 415, namely:

(1) the information had the necessary quality of confidence;

(2) it was imparted in circumstances importing an obligation of confidence; and

(3) disclosure would be an unauthorised use of the information and to the detriment of the confider.

The Commissioner took the view that the first two requirements were met but that the latter requirement had not been met because disclosure of the information would not cause the HEIs to suffer any detriment. HEFCE appealed. Guardian News was joined as an additional party. The following is a summary of the central principles emerging from the tribunal’s judgment:

(1) In order to establish that there was an ‘actionable breach of confidence’, the public authority had to establish that a breach of confidence claim was likely to succeed. It was not sufficient that the claim was merely properly arguable, i.e. that it would survive a strike out. Whilst the language of s. 41 did not itself indicate this conclusion, as the language was ambiguous, Hansard gave a clear answer on the point: ‘actionable’ for s. 41 purposes means, in the words of the bill’s sponsor, Lord Falconer, ‘being able to go to court and win’.

(2) As per the approach in Coco, in order to prove that information had the ‘necessary quality of confidence’, what needed to be established was simply that judged objectively the information was not otherwise accessible and was not trivial. Contrary to the case being advanced by Guardian News, the authority did not also need to be established at this stage of the analysis that the party claiming confidentiality could demonstrate some value which it would derive from the information being kept confidential, not least because this was something which could be considered at the third stage of the Coco test.

(3) In cases involving commercial information of the kind in issue in the instant case, the concept of ‘actionable breach of confidence’ required that the disclosure give rise to some form of detriment, as had been suggested in Coco. However, the standard of detriment was not particularly onerous and reputational damage would suffice for these purposes. The position on detriment may well be different where the information in issue is information affecting the privacy rights of individuals. However, there was no question of the case law on privacy rights operating to dilute or remove the requirement for detriment in cases involving commercial information.

(4) A breach of confidence would not be actionable if there would be an effective public interest defence to the claim. Following HRH Prince of Wales v Associated Newspapers Ltd ([2006] EWCA Civ 1776 (CA), the test of whether disclosure was in the public interest so as to give rise to a public interest defence was whether the disclosure was proportionate in all the circumstances.

(In the Prince of Wales case, the Court of Appeal held that, where the Article 10 right to freedom of expression was engaged, the question of whether that right should be fettered had to be determined by a proportionality test. In London Regional Transport v Mayor of London [2001] EWCA Civ 1491, Sedley LJ held at para. 55 that Article 10 rights included the right to receiving information as well as the right to disclose it. Although this latter judgment was not referred to by the tribunal in its reasons, it is presumed that it is the basis of the tribunal’s conclusion that the proportionality test applies to disclosures under s. 41.)

Applying these principles to the facts of the case, the tribunal found that there would be no actionable breach of confidence in disclosing the requested information because, whilst the information was confidential and its disclosure might give rise to some detriment, HEFCE would have a valid public interest defence in all the circumstances of the case.

Anya Proops is a barrister at 11KBW (www.11kbw.com).