[2023] UKUT 245 (AAC)

Ground 2 concerns the approach that the Tribunal took to the application of the exemption in section 41 of FOIA.

It was common ground between the parties that the correct test for establishing an actionable breach of confidence was that set out by Megarry J in Coco v A.N. Clark (Engineers) Limited [1968] FSR 415 (“Coco”) at 419:

“In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene, MR in the Saltman case on page 215, must “have the necessary quality of confidence about it”. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”

Ground 2 argues that the Tribunal erred in its approach to the application of section 41 FOIA by applying a blanket approach to the Report, rather than considering the particular character of each different item of information within the withheld information, the particular guarantee of confidence given prior to it being disclosed, and whether the information in question was already in the public domain.

The Second Respondent counters that this is, in substance, simply a ‘reasons’ challenge by another name, and that it seeks to hold the Tribunal to an unworkably high standard which runs contrary to a long line of authority from the higher courts about the standard to which a judge’s reasons are to be held. Mr Blake referred me to Oxford Phoenix Innovation v Information Commissioner [2018] UKUT 192 (AAC) which, at §50, cautions against reasons challenges of this nature, and R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48, in which Lord Hope observed at §25:

“It is well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it.”

Mr Blake also referred me to Sir James Munby’s observations in Re F (Children) [2016] EWCA Civ 546 at §23:

“It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann’s phrase, the court must be wary of becoming embroiled in “narrow textual analysis”.

The Upper Tribunal observed in UCAS v Information Commissioner and Lord Lucas [2014] UKUT 557 (AAC) that:

“it is unrealistic to expect a Tribunal to set out every twist and turn in its assessment of the evidence and its consequential reasoning”

The question is, rather:

“whether the Tribunal has done enough to show that it has applied the correct legal test and in broad terms explained its decision.”

Mr Blake cited the words of Judge Wikeley in Department for Work and Pensions v Information Commissioner and Zola [2014] UKUT 334 (AAC) at §27 in the context of an appeal which concerned the exemption in respect of commercial interests in section 43 FOIA:

“the relevant standard is well known to the Tribunal and to the parties, being part of the normal currency of information rights litigation, and so the Tribunal did not need to articulate all its dimensions fully.”

Mr Fowles, for the Appellant, acknowledged the authorities cited by the Second Respondent which deprecated an over-forensic approach to assessing adequacy of reasons, but said that there had to be a line beyond which reasons became inadequate. He relied upon the comments made by Henry LJ in Flannery v Halifax Estate Agents [2000] 1 All ER 373; [2000] 1 WLR 377 on the nature of the duty to give reasons as setting out where that line should be drawn:

“The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in ex parte Dave) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind: if it is fulfilled, the resulting decision is much more likely to be based on soundly based on the evidence than if it is not.”

Whether Ground 2 is properly viewed as a challenge to the Tribunal’s decision making or to its reasons doesn’t really matter. In order for it properly to conclude that withheld information was exempt under section 41 FOIA, the Tribunal had to satisfy itself both that the information in question was “obtained” from “any other person” (i.e. that it was not self-generated, see section 41 FOIA), and that disclosure of the information (otherwise than under FOIA) would constitute an actionable breach of confidence (see section 41 FOIA and the requirements set out in Coco).

The Tribunal was not under a duty to set out all the twists and turns of its reasoning, and there was no need for a painstaking line by line analysis of the withheld information, but if it is not adequately clear from its reasons that it assessed the material and that it determined that those two key criteria were satisfied, that failing would itself amount to an error of law.

Taking the “obtained” from “any other person” point first, this element of the test was acknowledged by the Tribunal in §48 of the FtT Decision. The Tribunal decided that this meant any information provided by employees of HfH could not be exempt under section 41 FOIA:

“48.

Section 41 only applies to information obtained from a third party. It was submitted by Mr Fowles that information given to the RSP under condition of confidentiality by employees of HfH was not information from a third party and so could not be exempt under Section 41. This is an unusual situation. The RSP is independent of HfH. Its role is to independently examine and report on the performance of HfH. HfH staff who co-operated with the RSP did not do so under the assurance of confidentiality save for that provided by HfH’s ‘whistle blowing (sic) policy’, the fact remains however that HfH staff are not third parties. The tribunal find that such information is not covered by S.41(1) for this reason.”

However, the Tribunal decided that, while the information provided by employees of HfH was not exempt under section 41 FOIA, it was exempt under section 40 (Personal information). That element of its decision making is not challenged in this appeal.

The Appellant had argued, though, that it was not only the information provided by employees of HfH that was not “obtained” from “any other person”, but also other information, such as the scope of the audit and the methodology for the report, and this submission was not addressed by the Tribunal. This leaves open the possibility that there was information that fell under neither exemption.

The Appellant says that the Tribunal divided the withheld information arbitrarily into “information in the Report” and “information not in the Report”, and it applied the section 41 test to the Report “en bloc”. I find this criticism to be unfounded: it is apparent from what the Tribunal says in its reasoned decision at §24 (where it provides the ‘gist’ of the closed session) that it “went through the bundle of withheld information” and the panel was:

“provided with further examples of documents that fall within the following categories: (i) letters and emails from individual leaseholders and former members of the HLA which contain personal and sensitive information and which were provided to the scrutiny panel in confidence, (ii) bank details and financial transactions; (iii) interview summaries (described as interview notes); (iv) extracts from the draft scrutiny panel report.”

So, while the Tribunal has not gone through each individual document one by one, it has identified meaningful categories of documents.

The Tribunal then set out its findings in relation to those documents. It made a clear finding (in §40) that they were “given to the RSP by individuals on condition of confidentiality”. The Tribunal made this finding based on evidence, relying primarily on witness evidence, as well as the terms of reference for the report. It acknowledged (at §42 of the FtT Decision) that Mr Fowles, for the Appellant, had argued that the absence of “a specific written script” for those conducting the interviews and the fact that some of the witness evidence did not support there having been any mention of, or at least no particular emphasis on, confidentiality. However, it rejected Mr Fowles’s argument about the absence of a script and it preferred the evidence of those who said that they were given some manner of assurance that their evidence would be treated as confidential. That position was open to it on the evidence. The Tribunal was entitled to find that the interviews were carried out under an assurance of confidentiality.

The Tribunal said at §44 of the FtT Decision that it was accepted that the test for breach of confidence was that set out by Megarry J in Coco, which it quoted. It cannot, therefore, be argued that the Tribunal was in ignorance of the proper test to be applied.

However, the Coco test has three limbs, so the Tribunal’s finding that the withheld information was provided on the understanding that it would be kept confidential is not enough, on its own, to demonstrate that it is information the disclosure of which would give rise to an action for breach of confidence, therefore attracting the section 41 FOIA exemption.

After quoting what Megarry J said in Coco the Tribunal continued:

“45.

The Tribunal find that this test is satisfied in respect of the documents referred to as ‘S40/S41’ documents and in respect of the full report. Those who took part in the audit did so on a promise of confidentiality and they expected the information they provided to remain private. The tribunal also accepts that the participants would not have provided the information if they thought it would be disclosed …”

That is fine as far as it goes, but again it only really addresses the second of the three limbs of the Coco test. There is no assessment of whether the information had the ‘necessary quality of confidence about it’. Given the way that Mr Fowles put the Appellant’s case (see the Tribunal’s own summary of it at §9 of the FtT Decision), the issue whether the withheld information had the “necessary quality of confidence” was clearly in issue and it needed to be addressed.

The confidential quality of the information relevant to the Coco test is referenced somewhat obliquely in §39 of the FtT Decision:

“The Section 40/41 documents have been withheld by HfH because disclosure could lead to the identification of individuals and these documents were provided to the RSP on condition of confidentiality.”

However, while this reasoning may apply to some of the information in question, the Appellant had argued that some of the information would not lead to the identification of individuals (for example, the contextual information such as the ‘introduction’, ‘methodology’ and ‘background’ sections).

He argued that, in many instances, redactions could be used to deal with the concern that disclosed information could, due to the small number of individuals involved, lead to individuals being identified. While it is established law that information that has been the subject of restricted disclosure may remain subject to an obligation of confidence (see Attorney-General v Guardian Newspapers Limited (No. 2) [1990] 1 AC 109), the Appellant’s case was that some of the withheld information (such as the chair’s email) was distributed very widely, so its disclosure would not be liable to identify its provider.

In §40 of the FtT Decision the Tribunal acknowledged the Appellant’s proposal for redactions, and it acknowledged that such an exercise “may elicit some documents or parts of documents that should not be excluded under section 40 or section 41”, but it decided that it was “not proportionate” to undertake such an exercise, adopting the First Respondent’s reasons for concluding that the documents could properly be withheld in their entirety.

In §50of the FtT Decision the Tribunal summarised the thrust of Mr Blake’s case on the applicability of section 41 FOIA:

“… Mr Blake’s submission, supporting the view of the ICO, is that the full report was derived from information imparted under conditions of confidence and that this provides an exemption from disclosure under S.41 which applies to all the report…”

It then set out its own position:

“51.

The tribunal accept this submission. Having considered the full report, and the redacted full report, the tribunal agrees with the submissions of HfH and the ICO. The report was compiled from interviews and information provided by people in confidence. The duty of confidence attaches to the report. The tribunal agree with the submission by the ICO that the non-confidential elements are peripheral and that a line-by-line exercise of filleting the report would result in unconnected bits of the report or parts of the necessary architecture of a report. A summary report is already available which has, in essence, conducted this exercise.”

There is no further discussion of the issue of whether the information has ‘the necessary quality of confidence’.

I approached the Tribunal’s decision-making on the working assumption that, having identified the proper tests for deciding whether the relevant information was exempt under section 41 (and indeed having set them out in its reasons), that it had applied those tests faithfully. However, the reasons the Tribunal has given show that such an assumption is not warranted in this case. While the Tribunal says, in relation to the Coco test, “this test is satisfied in respect of the documents referred to as ‘S40/S41’ documents and in respect of the full report”, it appears from its subsequent explanation that it based that finding on only one of the relevant criteria, i.e. the finding that the information was provided under conditions of confidence. What is clear to me from the Tribunal’s reasons is that it didn’t conduct the analysis that would have been required for it to make findings on the other limbs of the Coco test, because it didn’t consider it to be “proportionate” to do so.

Mr Blake, for the Second Respondent, maintained that the Tribunal was entitled to decline to carry out the kind of granular analysis of the withheld information that would be required if it were to make such findings, and indeed he says it was required to take a proportionate approach by the overriding objective in rule 2 of the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009 (the “GRC Rules”). That provision requires the Tribunal to deal with appeals “in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties”.

I am not persuaded by that submission. 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.

Mr Blake submitted that a public authority could only be required to do what was ‘practical’ and ‘realistic’. He posited a hypothetical situation in which a 10,000 page document in the possession of a public authority was requested, but all but one word in the document (the word “the”) fell under one or other exemption. The costs exemption under section 12 FOIA would not apply because the document was easily found (see §86 below). In such a situation, Mr Blake argued, the public authority surely couldn’t be required to pore over the entire document and laboriously apply redactions to it. Mr Fowles gave an equally extreme hypothetical situation in response to Mr Blake’s: a request is made for a 10,000 page document in the public authority’s possession, which the public authority says it would be disproportionate to analyse and redact, but within its 10,000 pages there is evidence of some iniquity: state fraud, or murder, which would not be brought to light if the public authority’s word was simply accepted and the Information Commissioner and Tribunal didn’t do the work of assessing the information.

The problem with Mr Blake’s example is that, until the document has been reviewed, it will not be known what is disclosable and what is exempt.

The Tribunal’s decision not to carry out its own analysis of the applicability of the statutory exemptions to the withheld information, on the basis that to do so would be “disproportionate”, was in error of law.

The Tribunal gave another, rather contradictory, reason for its decision not to carry out an analysis of all the withheld information to assess the applicability or otherwise of the claimed exemptions: it said that the production by HfH of the Summary Report had, “in essence, conducted this exercise”. If the decision not to assess the information in the report was made on the basis that the work had already been done by HfH then that too was in error of law, as it involved the Tribunal in effect abdicating its role to the party resisting disclosure.

If I am wrong that the Tribunal failed to apply two of the limbs of the Coco test that it had identified as being applicable, nothing in the Tribunal’s reasons explains how or why it satisfied itself that each of the first and third limbs of the test in Coco was satisfied. Although clearly there are limits to what a tribunal can say in an information rights case about information which is being withheld, and it is not necessary for it to explain matters in granular detail word by word or sentence by sentence, it was nonetheless incumbent on the Tribunal to explain in broad terms how the various categories of information withheld in reliance on the exemption in section 41 FOIA satisfied the three limbs of Coco. The Tribunal’s failure to do so renders its reasons inadequate and the FtT Decision itself in error of law.

Ground 3 argues that the First-tier Tribunal took an unlawful approach to the withheld information by deciding that certain information comprised in the withheld information, which did not fall within any exemption, should not be disclosed, contrary to section 1(1) FOIA. This ground overlaps with Ground 2.

First of all, I should say that the question whether an exemption applies to a piece of information is binary: information is either exempt or it isn’t. If it is not exempt, then the public authority has the obligations set out in section 1(1) in respect of it.

Section 12 FOIA provides an exemption which applies where the cost of compliance with a request (i.e. investigating whether the information is held and, if so, communicating it to the requester in accordance with section 1(1) FOIA) would exceed a specified limit.

That exemption was not relied upon by the Second Respondent.

Mr Blake explained that the time consuming and costly part of complying with the requests in this case was not the exercise of locating the information, but rather the task of going through the documents to identify which information in them was exempt and required redaction. He said that this element of compliance was not, according to the Administrative Court’s decision in Chief Constable of South Yorkshire Police v Information Commissioner [2011] EWHC 44 (Admin), a cost that could be considered when estimating the cost of compliance for the purposes of the section 12 FOIA exemption.

It was suggested that public authorities cannot be required to carry out steps which are onerous and disproportionate to the value of the information that is likely to be disclosable. However, Parliament has provided a specific exemption designed to protect public authorities from incurring excessive costs. There can be no justification for reading into the legislation a further exemption (in circumstances where the effort involved is ‘disproportionate’, or where the cost of applying redactions in respect of an identified document is excessive) that Parliament, having clearly considered the need to protect public authorities from excessively costly compliance, didn’t choose to include. That would be contrary to the approach approved by the Upper Tribunal in Montague of interpreting the right to disclosure broadly and the right to rely on an exemption narrowly.

However, while non-exempt information cannot become exempt simply because it forms part of the same document as other information which is exempt, section 50 FOIA does provide for a discretion whether to require steps to be taken in respect of information which has been found to be non-exempt, and this discretion may be exercised to avoid requiring public authorities to do what would be unreasonable.

In The Information Commissioner v HM Revenue & Customs and Geraldine Gaskell [2011] WL 12849924 (“Gaskell”), Judge Wikeley considered what section 50(4) of FOIA required of the Information Commissioner in the context of a change of circumstances between the public authority’s response to the information request and the Information Commissioner’s decision. In that case the change of circumstances was the transfer of the Rent Service from the Department for Work and Pensions to HM Revenue & Customs. That transfer resulted in the Rent Service officials becoming subject to legislation which prevented them from disclosing information held by HM Revenue & Customs in connection with a function of HM Revenue & Customs (which they had not been subject to when the Rent Service was part of the Department for Work and Pensions). Judge Wikeley held at §24, that:

“Parliament can be presumed not to have intended that the Commissioner might have to impose an obligation on a public authority to take the “step” of communicating certain information where that step would, in the circumstances, be e.g. unlawful, impossible or wholly impractical…”

He concluded that section 50(4) FOIA vested the Information Commissioner with a discretion, rather than imposed a duty upon him, as to the steps that should be specified. He acknowledged the concern that widespread exercise of this discretion by the Information Commissioner could result in public authorities being relieved too readily of the need to take appropriate steps in a manner which would be inimical to the principles underpinning FOIA but noted (at §29) that the then Information Commissioner did not anticipate exercising the discretion not to require communication of requested information frequently, and indeed that case was the first time in which he had exercised that discretion in that way.

While this indicates that the Information Commissioner has a discretion under section 50(4) FOIA not to order the taking of steps to disclose where requested information has been found not to be subject to an exemption and the public authority has failed to comply with its obligations under section 1(1), 11 or 17 FOIA, it is a considerable way away from establishing a discretion not to carry out the exercise of evaluating the information in the first place.

Judge Wikeley returned to the discretion under section 50(4) FOIA in Home Office v The Information Commissioner and Cobain [2014] UKUT 306 (AAC). In that case the requester sought various information. One item of information was found by the First-tier Tribunal to be exempt from disclosure, while another was found not to fall within any exemption, but disclosure of the non-exempt information, when combined with publicly available information, would allow the requester (and the public at large) to ascertain what the exempt information was. The First-tier Tribunal concluded that the non-exempt information must be disclosed to the requester notwithstanding that it would have the effect of revealing the exempt information. Judge Wikeley found that the First-tier Tribunal had erred in law by failing to consider whether to exercise its discretion under section 50(4) FOIA as to whether or not to stipulate any steps to be taken by the public authority as regards disclosure. Since this was an interim decision only, and since Judge Wikeley said nothing about how the discretion should have been exercised (just that consideration should have been given to exercising it) that case does not advance the Second Respondent’s case.

The Information Commissioner conceded that some elements of the Report do not contain derived information that reflects the ‘raw’ confidential information and says that “it would also doubtless be possible to identify sentences, and possibly paragraphs of the Report that do not relate to or reveal any raw confidential information for instance because they deal with the circumstances in which the Report was commissioned” (see §14 of the First Respondent’s skeleton argument).

While the Tribunal did not say in so many words that there was information within the withheld information which did not satisfy any exemption, it contemplated that that was likely to be the case. It made no finding on this for the simple reason that, as discussed above, it did not carry out the exercise of assessing the withheld information and categorising it. I have found that this approach was in error of law.

Had the Tribunal carried out that exercise, and had it found that there was information within the withheld information that didn’t attract any exemption, it may have been entitled to exercise the discretion under section 50(4) FOIA not to require the Second Respondent to take any further steps in relation to that non-exempt information.

While the Tribunal and the Information Commissioner speculated that, once filleted of exempt information, the Report would likely amount to “unconnected bits of the report or parts of the necessary architecture of a report” (§51 of the FtT Decision) or “unconnected scraps of information” (§15 of the First Respondent’s skeleton argument), the fact is that it didn’t carry out this exercise, so it can’t know what would have been disclosable. It was not, therefore, in a position to engage in a conscious exercise of discretion under section 50(4) FOIA . Given that the Tribunal did not make findings as to which parts of the withheld information were disclosable, this is not an appropriate case for me to explore the limits of the discretion under Section 50(4) FOIA, and whether it extends to declining to order steps to be taken when compliance is not ‘unlawful’, ‘impossible’ or ‘wholly impractical’ (as in Gaskell), but also where to do so would be ‘disproportionate’ because the information that is disclosable would be ‘peripheral’ only.

The Tribunal was not entitled to treat the Report as exempt in its entirety without having made a finding that all the information comprised in it satisfied one or other of the FOIA exemptions. This was in error of law.

An exercise of discretion under section 50(4) FOIA only arises in respect of information which has been found to be non-exempt. Because it had not identified any information as being non-exempt it could not properly exercise that discretion not to require any steps to be taken. As such, its error of law cannot be said to be immaterial.