[2023] UKUT 245 (AAC)

Section 1(1) provides for a general right to disclosure of information held by public authorities:

“1.

General right of access to information held by public authorities

(1)

Any person making a request for information to a public authority is entitled –

(a)

to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)

if that is the case, to have that information communicated to him.”

That general right is subject to various exemptions, set out in sections 2, 9, 12, 14 and Part II of FOIA. Some of those exemptions are absolute. Others are qualified, requiring a balancing of the public interest in disclosure against the public interest in maintaining the exemption.

Section 41 provides an exemption in relation to confidential information.

“41.

Information provided in confidence

(1)

Information is exempt information if –

(a)

it was obtained by the public authority from any other person (including another public authority), and

(b)

the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.

(2)

The duty to confirm or deny does not arise if, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) constitute an actionable breach of confidence.”

Although the exemption under section 41 FOIA is categorised as an absolute exemption (see section 2(3)(g) FOIA), because its scope is defined by reference to the availability of an action for breach of confidence, and it is a ‘defence’ to such an action that the enforcement of the obligation of confidence would not be in the public interest (such as where it reveals some form of iniquity on the part of the party bringing the action) it is in practice subject to limitations.

Information falling within section 41 may also be exempt from disclosure under other provisions of FOIA, such as section 40 (Personal information), which was relied upon by the Second Respondent in this case. However, this appeal relates only to the Tribunal’s decision-making in relation to the section 41 exemption, and not the section 40 exemption.

Section 12 FOIA also provides a public authority with an exemption from complying with an information request if it estimates that the cost of complying with the request would exceed a specified limit. However, that exemption was not relied upon in this case.

Generally speaking, the right to disclosure is to be interpreted broadly and the right to rely on an exemption narrowly. In Montague v Information Commissioner [2022] UKUT 104 (AAC) (“Montague”) a three-judge panel of the Upper Tribunal said:

“The starting point is that section 1(1)(b) of FOIA confers a right (“is entitled”) for a person to have information sought by them provided to them if it is held by the public authority unless, inter alia, it is exempt information under Part II of FOIA. Given the general and important constitutional right conferred by section 1 of FOIA, we consider that statutory cutting down of that right as set out elsewhere in FOIA needs to be carefully construed. The language of the Act should, where possible, be construed broadly and liberally in the context of FOIA’s statutory purpose to make provision for the disclosure of information held by public authorities in the interests of greater openness and transparency: see University and Colleges Admissions Services v ICO and Lucas [2014] UKUT 557 (AAC); [2015] AACR 25 at paragraphs [35] and [39] and, albeit in a different context but to similar effect, paragraphs [2] and [68] of Dransfield v ICO and Devon CC [2015] EWCA Civ 454; [2015] 1 WLR 5316.