Freedom of Information: The “Blanket” Approach is no Longer Permissible

07 Dec 2023

Information Law

The Upper Tribunal has allowed an appeal by community campaigner Nick Martin-Clark against the First Tier Tribunal’s decision to uphold Haringey Council and the ICO’s refusal of his freedom of information request. The UT found that Haringey’s approach to the withheld information, which treated all the information in a class as equally subject to an exemption without analysing the information itself, was unlawful. This will have significant impacts across the field of freedom of information because public authorities may no longer be able to rely on blanket assertions about whether certain classes of information fall within one of the FOIA exemptions.

Background

Haringey (by its “arms-length management organisation”, Homes for Haringey), used a community panel (set up to scrutinise its decisions) to investigate a leaseholders’ advocacy group. The investigation (which was conducted largely in conditions of secrecy) and final report made a number of claims which were disputed by the subjects of the investigation. Only a summary of the report was ever published. Haringey eventually abandoned the report’s recommendations. Mr Martin-Clark made a freedom of information request for the full report and evidence base. Haringey refused the request, relying (inter alia) on section 41 of the FOIA (“information provided in confidence”). Haringey argued that the information provided to the investigation was given in confidence. As a result, both the evidence base and the report itself fell within section 41. Mr Martin-Clark accepted that information which disclosed the identity of the person who provided it should remain confidential but argued that information falling outside this class should be disclosed.

 The Law

Section 41 provides for an exemption to the duty to disclose where information was (a) obtained from another person and (b) disclosure would constitute an “actionable breach of confidence”. This imports the common law concept of “breach of confidence” into the statute. The common law concept is set out in Coco v AN Clark (Engineers) Ltd [1969] RPC 41 and requires a three-stage test. Information must have been (1) imparted in circumstances implying an obligation of confidence, (2) have, in and of itself, the “necessary quality of confidence”, and (3) disclosure must be a use of the information that is detrimental to the confider (“the Coco test”). There is a defence to breach of confidence if the information was used to expose iniquity.

The UT’s Reasoning

The FTT, in essence, treated the Withheld Information as falling into two classes: (1) the report, and (2) the documents used to compile the report. Judge Church, sitting in the UT, identified three principal errors:

  1. In treating the information in such broad terms, the FTT had failed to properly apply the Coco test. While it had properly reached the conclusion that the information was provided in conditions of confidence, it had not considered whether the information had the necessary quality of confidence and, in particular, whether the quality of confidence might differ in relation to different pieces of information in the same class. The Council’s submission, that it would have been disproportionate to undertake such a granular exercise, was rejected:

Rule 2(3) of the GRC Rules provides that the First-tier Tribunal must seek to give effect to the overriding objective when it exercises any power under the GRC Rules or interprets any rule or practice direction. It does not import either a power or an obligation for the Tribunal to apply a filter of “proportionality” when interpreting legislation. The Tribunal’s job was to consider whether the Information Commissioner’s decision notice was in accordance with the law. In doing so it had to consider whether the public authority had complied with its obligations under Part I of FOIA. That task, in turn, required it to assess whether the information the Appellant had requested was exempt from disclosure under any of the absolute or qualified exemptions.

  1. The FTT and the ICO both accepted that certain information within the Withheld Information likely did not meet the Coco test but held that the Council was nonetheless entitled to keep it secret because it was disproportionate to sort the confidential information from the non-confidential information. The UT rejected this approach. While section 50 of FOIA provides the ICO with a discretion not to require the disclosure of certain non-exempt information, this discretion cannot be exercised until the decision-maker has conducted an analysis of the relevant information and determined that it is not exempt. The approach adopted by the Council (and subsequently the ICO and FTT), by which it was simply assumed that there was non-exempt information which it was disproportionate to disaggregate from the exempt information, was impermissible.

Comment

This decision is likely to have repercussions well beyond section 41 cases. It is relatively common practice for public bodies to claim that a class of information is exempt on the basis that some of the information in the class is provably exempt and it is disproportionate to look any further. Both the ICO and the FTT have been tolerant of this approach. Judge Church’s decision means that decision-makers must now conduct a more granular exercise. Exempt and non-exempt information must be properly distinguished. Public authorities will no longer be able to rely on “exemption by association” to avoid disclosing non-exempt information.

Sam Fowles acted for Nick Martin-Clark.