Department of Health v The Information Commissioner & Anor (Information rights : Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)

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	Upper Tribunal (Administrative Appeals Chamber)
You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> Department of Health v The Information Commissioner & Anor (Information rights : Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2015/159.html Cite as: [2015] UKUT 159 (AAC), [2017] AACR 30

16. In APPGER v IC and FCO [2013] UKUT 0560 (AAC) the Upper Tribunal made the following comments relating to the consideration by a tribunal of the competing public interests. The Department relies on these comments and points out correctly that they apply to s. 35 and that the FTT did not seek to distinguish them on the basis that they were confined to s. 27. The comments are in the following paragraphs:

[74] This assessment gives rise to a process of parallel reasoning that arises in other balancing exercises (e.g. in the BM litigation in respect of PII) and so it involves what is sometimes described as an “apples and pears” comparison.

[75] In our view correctly, it was accepted before us by the FCO and the IC that when assessing competing public interests under section 27 of FOIA the correct approach is to identify the actual harm or prejudice that the proposed disclosure would (or would be likely to or may) cause and the actual benefits its disclosure would (or would be likely to or may) confer or promote. This equates to the approach now taken in PII claims. Also, it is in line with the approach that the FTT explained it had adopted in deciding that section 27 was engaged, namely that a real and significant risk of that disclosure would prejudice relations with another State had to be established and the FTT’s acknowledgement in paragraph [166] that the public interest factors against disclosure require definition.

[76] Such an approach requires an appropriately detailed identification, proof, explanation and examination of both (a) the harm or prejudice and (b) benefits that the proposed disclosure of the material in respect of which the section 27 exemption is claimed would (or would be likely to or may) cause or promote. Plainly that includes an identification of the relevant material and the circumstances in which it was provided to or obtained by the body claiming the section 27 exemption.

General Observations

[144] We stress that we accept and acknowledge that FOIA and the public interests consideration under the section 27 exemption and other exemptions cover a wide range of issues and an approach that “one process fits all” is not appropriate to the examination of competing public interests under FOIA. Rather a proportionate approach must be taken and what is or is not fair in a given case will depend on the circumstances of that case. This qualifies the comments we make below.

[145] Naturally, we also acknowledge (a) the benefit of hindsight and that the FOIA jurisdiction is relatively new and is developing, (b) that the approach taken by the FTT in this case was in line with the practice guidance then in existence and was one that was often adopted at that time when there was closed material and evidence and (c) the obvious care and diligence that the FTT brought to its task.

[146] However, we think that it is appropriate for us to make some general observations because of our conclusions that: (a) the failure by the parties and the FTT to identify with sufficient clarity the case being advanced in open and closed session by the FCO concerning the nature of the actual risks of harm to the public interest it was asserting would flow from disclosure of the material in respect of which it was claiming the section 27 exemption has resulted in unfairness which could have been avoided, and (b) it seems that this was caused, at least in part, by the approach taken to the closed aspects of the proceedings.

[147] The FTT (it seems with the consent or acknowledgement of the parties) should not have proceeded with the closed session without it being recorded. We do not understand how this can have been thought to be appropriate in this case. In our view, it reflects an approach that fails to properly recognise the need to exercise appropriate care in determining what should be closed and to ensure that there is a proper record of what happened in closed session to inform the decisions to be made on what the excluded party should be told about this, and to inform any appellate tribunal or court.

[148] Also, in cases of this type, and more generally we consider that there is a need to consider whether there should be oral evidence and cross examination in open (and / or closed session if there is one) or whether a combination of the duty of candour, documentary evidence and argument would provide an appropriate and sufficient process to fairly advance and test the risks of harm to the public interest being advanced, as it is in, for example, many PII claims.

[149] As mentioned earlier, there was common ground before us that when assessing competing public interests under FOIA the correct approach is to identify the actual harm or prejudice that the proposed disclosure would (or would be likely to or may) cause and the actual benefits its disclosure would (or would be likely to or may) confer or promote. This equates to the approach now taken in PII claims and requires an appropriately detailed identification, proof, explanation and examination of both (a) the harm or prejudice, and (b) benefits that the proposed disclosure of the relevant material in respect of which the exemption is claimed would (or would be likely to or may) cause or promote.

[150] How this is to be done fairly depends on the circumstances of the case. In some cases an approach of classifying a public interest as weak, strong or stronger and putting them in competing columns may be appropriate but in others, and particularly when competing public interests of the type and strength involved in this case arise, such an exercise does not go far beyond the starting point and is inevitably generic.

[151] In many cases a particularisation of the reasons for those categorisations will be warranted to properly inform a consideration, weighing and balancing of the competing actual harm and benefits.

[152] In our view, in all cases in which competing public interests have to be assessed, and in particular in a case when issues such as those that arise here are relevant, care must be taken to ensure that the competing factors are properly and sufficiently identified and so it is important for the parties and the tribunal (or other decision maker) to consider how the actual prejudice or harm on the one side and the actual benefit on the other is to be identified and established.

[153] An exchange of witness statements is not best suited to a particularised identification of such issues and competing factors and, when it is needed, such an identification can generally be better achieved by a direction that a document identifying the issues, and so such factors, be produced by the parties. Such documents can take several forms.

[154] Problems and fairness issues relating to what should be disclosed before and after a closed session are not new. As pointed out in Browning v IC and Department of Business Innovation and Skills [2013] UKUT 236 (AAC) there is a distinction between the requested and disputed material itself, which cannot be disclosed without undermining the FOIA jurisdiction, and material advanced in respect of a qualified exemption to show that the balance of public interest is against disclosure. As to the latter, and subject to points that arise if such material would also be covered by a FOIA exemption or should not be disclosed for other reasons, fairness dictates that the requester (and so the party excluded from any closed session) is told as much as possible about the argument he has to address and of the evidence and reasoning it is based on.

[155] So, when any closed session has examined evidence and/or argument relating to the existence and strength of a public interest against disclosure and so usually, if done properly, evidence and argument concerning the actual risks of harm that it is asserted the disclosure sought will or may bring about, it is highly likely that after the closed session the FTT and the parties should consider:

(1) whether amendments or additions should be made to an open document identifying the actual risks of harm being asserted, and/or

(2) whether such an open document should be prepared, and/or

(3) whether the excluded party should be told in specific or general terms of closed evidence, reasoning or argument.

[156] That consideration is directed to ensuring that so far as possible the excluded party is informed of the case he has to meet. Also, it is directed to ensuring that the tribunal and the other parties keep under review the validity of the reasons why evidence and argument and/or the gist of them should be withheld from the excluded party.

17. I was a member of that Upper Tribunal. When making those comments that Upper Tribunal had in mind the development of the common law relating to PII and in particular the approach and changes leading up to, and following, R v Chief Constable of West Midlands Police, Ex p Wiley [1995] 1 AC 274, the Scott Inquiry relating to Matrix Churchill and the statement made to Parliament in 1996. This is a part of the background to FOIA and it covers the approach of government and the courts to class claims. That background and the approach at common law to PII claims is helpfully summarised by Lord Clarke in his judgment in Al Rawi v Security Service [2011] UKSC 34, [2012] AC 531 as follows:

PII – the principles

141. The principles of PII are a construct of the common law which were developed because it was appreciated that conflict may arise between the public interest and established rules of discovery and disclosure. -------------

142. However, in Conway v Rimmer [1968] AC 910 a five member appellate committee of the House of Lords disapproved the approach taken in Duncan v Cammell Laird. It held, not only that it was for the court to decide whether Crown privilege should apply, but also that it was for the court, not the minister, to balance the competing public interests. Lord Reid said this at p 940:

"It is universally recognised that here there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. ----------- “

143. A little later, at pp 951-952, after quoting the reference in Duncan v Cammell Laird to "the proper ruling" referred to above, namely to accept the minister's view in every case, Lord Reid said:

"In considering what it is 'proper' for a court to do we must have regard to the need shown by 25 years' experience since Duncan's case, that the courts should balance the public interest in the proper administration of justice against the public interest in withholding any evidence which a minister considers ought to be withheld.

I would therefore propose that the House ought now to decide that courts have and are entitled to exercise a power and duty to hold a balance between the public interest, as expressed by a minister, to withhold certain documents or other evidence, and the public interest in ensuring the proper administration of justice." --------

144. It is common ground that the current state of the law on what is now called PII is set out in R v Chief Constable of West Midlands Police, Ex p Wiley [1995] 1 AC 274. In that case, the House of Lords held that there was no justification for a claim for immunity for the entire class of documents generated by an investigation into a complaint against the police.

------------

PII – the facts

147. In the course of the argument, Mr Crow referred the Court to the description of the PII certification process contained in the Attorney General's statement made to the House of Commons on 18 December 1996 following the Matrix Churchill affair (Hansard (HC Debates) cols 949-58) and the decision in Wiley. In it the Attorney General noted that PII is subject to the ruling of the court and that, in a criminal case, when government documents are in issue, the judge examines the documents and makes the actual decision on disclosure in the light of the facts of the case. The statement also said that in what it described as the new approach, ministers would focus directly on the damage that disclosure would cause, the former division into class and contents claims would no longer be applied and they would only claim PII when it was believed that disclosure of a document would cause real damage or harm to the public interest. The statement further said that the new approach was subject to the supervision of the courts and that it accorded with the view expressed by the then Lord Chief Justice that PII "should only be claimed for the bare minimum of documents for which the claim of serious harm can be seen to be clearly justified." Finally, the statement referred to the kinds of serious harm which might be involved.

148. Mr Crow described the certification process in a little more detail in this way. Lawyers consider material to see if it passes the threshold test for disclosure under CPR Part 31. In so far as it is prima facie disclosable, officials review material for potential to cause harm to the public interest. If harm to the public interest is identified, the department carries out a balance between harm caused by the disclosure on the one hand and injustice in the litigation on the other. It also considers whether it is possible to redact or gist the information or to make admissions of fact. Officials consider whether and to what extent the balance falls against disclosure in order to give advice to the minister as to whether to certify. If the minister, having considered the advice, decides that a certificate should be given, a PII certificate is prepared which includes a disclosable certificate or schedule describing the types of harm that might be caused to the public interest and a sensitive schedule as to why it is believed that disclosure of documents would cause real damage or harm to the public interest.

149. After the minister has signed a PII certificate, the balance between the relevant public interests must be made by the judge. In a simple case he will hear argument on both sides and reach a conclusion, often having looked at the documents. There will be no need for special advocates. The position may be very different in a case of complexity, especially a case of great complexity such as this was or would have been but for the settlement. The judge may need assistance in order carry out the balance. Such assistance will not of course be available from counsel for the non-state parties because they will not have seen the documents.

18. In the period leading up to that statement in Parliament and in 1997, following the election of the new Government, I was regularly involved in the approach so described by Mr Crow (my successor as Treasury Counsel) to the Supreme Court. The announced decision was implemented before and after the change in government and it reflected an acceptance that the public interest balance in PII cases should be assessed by reference to the actual harm that disclosure of a document or information would or would be likely to cause. It consigned to history the assertion of the public interest against disclosure on a class basis (i.e. because the document or information fell within a class description rather than by reference to what it contained). It was therefore a matter of some considerable surprise to me to find out that a class approach was being taken in the context of FOIA as it seems to run directly counter to the thinking and underlying intention of Parliament when passing that Act. Indeed as cited in paragraphs 1 – 015 of the 4^th edition of Coppel on Information Rights Law and Practice the White Paper at paragraph 3.11 made clear that disclosure should be assessed on a “contents” basis.

19. Of course, there are differences between the public interest exercise involved in respect of a PII claim and a FOIA request not least amongst them being the nature of the competing public interests in favour of disclosure. In the case of PII that is the admission of relevant evidence to further the administration of justice. Also, I acknowledge that:

i) the FOIA exemptions (both absolute and qualified) are described in wide terms by reference to classes or generic descriptions of information,

ii) as the FTT point out in paragraph 48(a) of the FTT Decision s. 2(2)(b) is directed to the public interest in maintaining the relevant exemption and not to generalised public interest reasons why it would be better to keep the information private, and

iii) a contents assessment of the public interest against (and for) disclosure of information can and generally will include an assertion and assessment of those public interests by reference to a class that describes that information (e.g. advice to ministers or legal advice).

But I do not see why any of these points warrants an assessment of the competing public interest relating to the disclosure of information under FOIA on a class basis.

20. In my view a class approach is wrong. It does not accord with the underlying purpose of FOIA, it flies in the face of the background I have described, and it does not fit with equivalent balancing exercises in respect of the public interest (e.g. when a duty of confidence is owed). Also, it creates unnecessary problems in the difficult weighing or assessment of competing interests and the “apples and pears” arguments it involves by introducing a comparison of classes or generic issues when what is at issue is the disclosure of specific information.

21. An example of the unnecessary problems caused by a class approach is that it spawned the arid, and in my view incorrect, approach or analysis by reference to whether a particular exemption carries inherent or presumptive weight. Cases relating to this are referred to in the FTT Decision at paragraph 74, although the FTT then say that they did not find them to be of much practical assistance.

22. The cases relating to giving an exemption an inherent or presumptive weight are discussed by Upper Tribunal Judge Turnbull in The Cabinet Office v IC [2014] UKUT 461 (AAC). I agree with and endorse his conclusion (at paragraph 51) that paragraph 146 of the decision of the FTT in APPGER v IC and FCO EA/2011/0049-0051 (and thus the approach of the FTT of taking it into account in this case) is wrong. Indeed, in my view this approach by the FTT in APPGER of giving some exemptions inherent or presumptive weight or more inherent or presumptive weight was flawed because:

i) it was based on a misinterpretation of the central reasoning of Stanley Burnton J in OGC v IC [2008] EWHC 774 (Admin) at paragraphs 78 and 79, and

ii) it was founded on a class rather than a contents approach.

23. In my view, the correct approach to the application of s. 2(2)(b) of FOIA is set out by the Upper Tribunal in paragraph 149 of its decision in APPGER v ICO and FCO. So what is required is an assessment and comparison of actual harm and benefit by reference to the contents of the requested information that falls within a qualified exemption. Mr Eadie accepted and indeed submitted this before me and also accepted that in Cabinet Office v IC Upper Tribunal Judge Turnbull had, contrary to his arguments in that case, reached the correct conclusion. Mr Hopkins (unsurprisingly perhaps as the successful counsel in Cabinet Office v IC) argued that the case for maintaining the qualified exemption must be made on the facts of each case.

24. It follows that if and to the extent that Blake J is saying anything different in HM Treasury v IC [2009] EWHC 1811; [2010] QB 563 (and in my view on a proper analysis in substance when his approach is compared to that set out in paragraphs 29 to 32 below, he is not) I do not agree.

25. How does a contents approach by reference to actual harm and actual benefit work? Actual harm includes risk of actual harm. Actual benefit includes a real chance of benefit.

26. A classic class claim to PII was based on the public interest in preserving the confidentiality of discussions relating to policy formulation and development. A significant aspect of the reasoning to support that class claim was the “candour argument”, namely the promotion of full and frank expressions of view in robust terms and the thinking and discussion of the unthinkable in order to test and develop ideas. This argument is now advanced under FOIA as a part of the “safe space” and “chilling effect” arguments.

27. The statement to Parliament referred to in Al Rawi abandoned that class approach and so relieved those who were instructed by Government departments of the difficult task of trying to convince courts that it was persuasive. Historically the candour argument was advanced in support of both class and contents claims for PII and LPP. The common law on these issues diverged with the result that LPP is based on a right and so a guarantee of non-disclosure, whereas no such right exists in the context of PII claims or duties of confidence. The lack of a right guaranteeing non-disclosure of information, absent consent, means that that information is at risk of disclosure in the overall public interest (i.e. when the public interest in disclosure outweighs the public interest in non-disclosure). As soon as this qualification is factored into the candour argument (or the relevant parts of the safe space or chilling effect arguments), it is immediately apparent that it highlights a weakness in it. This is because the argument cannot be founded on an expectation that the relevant communications will not be so disclosed. It follows that if he is properly informed, a person taking part in the discussions will appreciate that the greater the public interest in the disclosure of confidential, candid and frank exchanges, the more likely it is that they will be disclosed. In general terms, this weakness in the candour argument was one that the courts found persuasive and it led many judges to the view that claims to PII based on it (i.e. in short that civil servants would be discouraged from expressing views fully, frankly and forcefully in discussions relating to the development of policy) were unconvincing.

28. The same weakness exists in respect of a qualified FOIA exemption because any properly informed person will know that information held by a public authority is at risk of disclosure in the public interest.

29. Properly drafted certificates and evidence claiming PII addressed this weakness. In my view, evidence or reasoning in support of the safe space or chilling effect argument in respect of a FOIA request that does not address in a properly reasoned, balanced and objective way:

i) this weakness,

ii) the public interest in there being disclosure of information at an appropriate time that shows that the robust exchanges relied on as being important to good decision making have taken place, and

iii) why persons whose views and participation in the relevant discussions would be discouraged from expressing them in promoting good decision making and administration and thereby ensuring that this is demonstrated both internally and when appropriate externally,

is flawed.

30. So a contents based assertion of the public interest against disclosure has to show that the actual information is an example of the type of information within the class description of an exemption (e.g. formulation of policy or Ministerial communications or the operation of a Ministerial private office), and why the manner in which disclosure of its contents will cause or give rise to a risk of actual harm to the public interest. It is by this route that:

i) the public interest points relating to the class descriptions of the qualified exemptions, and so in maintaining the exemptions, are engaged (e.g. conventions relating to collective responsibility and Law Officers’ advice) and applied to the contents of the information covered by the exemption, and

ii) the wide descriptions of (and so the wide reach of) some of the qualified exemptions do not result in information within that description or class that does not in fact engage the reasoning on why disclosure would cause or give rise to risk of actual harm (e.g. anodyne discussion) being treated in the same way as information that does engage that reasoning because of its content (e.g. examples of full and frank exchanges).

31. That contents approach will also highlight the timing issues that relate to the safe space argument. The timing issues are different to the candour or chilling effect arguments in that significant aspects of them relate to the likelihood of harm from distracting and counter productive discussion based on disclosure before a decision is made.

32. Finally, I record that I agree that a contents approach does not mean that the information is not considered as a package (see FCO v IC and Plowden [2013] UKUT 275 (AAC) at paragraph 16). Indeed such a consideration accords with the nature of a contents based assessment because it reflects the meaning and effect of the content of the relevant information.

33. The benefit of disclosure. The approach described by the Upper Tribunal in AGGPER v ICO and FCO and in FCO v IC and Plowden (see in particular at paragraph 15) and indeed the wording of s. 2(2)(b) show that the public interest assessment is a two way street and so that both sides of it should be assessed on a contents basis.

34. This again does not mean that the general public interests in favour of disclosure that underlie FOIA are not taken into account. I have referred to them at paragraphs 9 and 10 above.

35. The public interests on which the general purposes of FOIA of giving access to information are founded have a wide ambit. I accept that they can be asserted at a high generic level and are relevant at that level, but I do not understand why, as the FTT said at paragraph 48(b) “in many cases it will only be possible for the benefits of transparency to be identified only at a high generic level”, and so why the footnote reference to the ministerial certificate in Evans supports that view. It seems to me it would only be possible to so identify the public interest in the requested information being disclosed if it cannot be asserted that the content of the requested information would or would be likely to promote the public interest in disclosure identified at a high generic level.

36. I acknowledge that the points that:

i) the requester does not know the contents of the information and so he cannot base a public interest argument on those contents, and

ii) the requester does not have to give reasons for making a FOIA request (in contrast to the position in a PII claim),

found the conclusion that the public interest balancing exercise is engaged and one side may have to be taken into account on a generic level if no public interest link in favour of disclosure is made by the requester or others to the contents of the information.

37. But, in my view, the linkage between the contents of the information and the application of the general public interests in favour of disclosure will often be informed by the reasons for the request, which will normally be founded on what it is thought it contains or might contain or omit. Further, the Information Commissioner and the FTT will know the contents of the requested information and they can therefore assess how disclosure of that content will promote the public interest.

38. In my view, there is no presumption in favour of disclosure included in FOIA (contrast Regulation 12(2) of the Environmental Information Regulations). The point that FOIA gives a right to information subject to exemptions does not mean that once a qualified exemption is engaged there is a presumption or bias in favour of disclosure founded on the general underlying purposes of FOIA. Rather, the position is that if, after a contents based assessment of the competing public interests for and against disclosure has been carried out, the decision maker concludes that the competing interests are evenly balanced he or she will not have concluded that the public interest in maintaining the exemption (i.e. against disclosure) outweighs the public interest in disclosing the information (as s. 2(2)(b) requires). Lord Wilson (the single minority in Sugar (No 2)) bases what he refers to as the bias of FOIA in favour of disclosure on this point. The extent of any such bias or presumption is that like the burden of proof it provides a result in the event of a draw.

The grounds of appeal relating to the FTT’s assessment of the overall public interest

Oral Evidence

39. The fact that the FTT heard oral evidence at its own instigation is not, as such, a ground of appeal but it is an integral part of the FTT’s approach to the assessment of the Department’s evidence and the weight given (or deference shown) to it by the FTT. Both the reasons why the FTT heard oral evidence and their analysis and findings having regard to it inform the approach of the FTT to the Department’s evidence and thus whether it gave it appropriate weight or showed it appropriate deference.

40. As the FTT point out, rules of evidence which distinguish between opinion evidence, expert evidence and evidence on fact do not apply in tribunals but they are relevant to issues relating to the purpose of hearing oral evidence and procedural fairness which do arise in tribunals.

41. For example, and notwithstanding the informality of tribunal proceedings, if a FTT wants to investigate and make findings on matters of disputed fact involving credibility or involving the objectivity, competence or accuracy of written evidence it is likely that, as a matter of fairness, there would have to be oral evidence during which these matters are properly put to the witness.

42. In contrast, if the purpose of questioning is to test the reasoning of witnesses as opposed to their truthfulness, objectivity or accuracy different issues arise. In those circumstances, even when the witness is being advanced as a person with relevant expertise an FTT should take care to avoid a result that witnesses are required to defend their reasoning in cross examination and so act as advocates rather than witnesses on one side or other of the public interest argument. This is particularly so when the party for whom they have given written evidence is represented.

43. I disagree with the point made in paragraph 34 of the FTT Decision that the putting of questions in closed session can be of special value and that a requester may understandably feel aggrieved if evidence he has not seen has not been independently (so) tested. It seems to me much more likely that the excluded requester would be happier if he does not have to speculate on whether the oral evidence allowed the public authority witness to augment his evidence and reasoning or whether the skills of the questioners had the opposite effect. Further, if closed evidence is only heard exceptionally this should encourage public authorities, and others, to provide properly particularised and reasoned written evidence on what are likely to be issues relating to the validity of reasoning on the public interest issues, and so matters of argument rather than factual investigation. Sadly, both APPGER and Browning show that the hopefully historical practice of the FTT of not strictly limiting what should be done in closed session promoted unfairness and understandable mistrust in the mind of a requester. The two cases also show that understandably an excluded requester derives little comfort from the knowledge that witnesses in closed session will be the subject of questioning by an investigatory tribunal. The reality is that they feel excluded and therefore suspicious. That is not to say that in all cases oral evidence at a closed hearing will not be appropriate but in my view it is likely that cases where it will be appropriate should be rare.

44. As in APPGER, I acknowledge that a “one process fits all” approach to FOIA cases, including the hearing of oral evidence is not appropriate. I also accept and acknowledge that:

i) in the past FTTs have found oral evidence from witnesses advancing public interest arguments useful, and for example

ii) I understand that my colleagues in DEFRA v IC and the Badger Trust [2014] UKUT 526 (AAC) found the oral evidence given in that case more useful than I did.

45. Accordingly, I agree with the FTT that it is within their case management powers to hear oral evidence and the guidance in APPGER was not directed to preventing that in all cases. Rather, it is directed to ensuring that FTTs are not set in default mode about hearing oral evidence (or going into closed session) and that they should only do so when they have considered why they think this is necessary, or likely to be helpful, or likely to promote a fair and proportionate determination of the appeal. It follows that before directing that there should be oral evidence FTTs need to ask and answer, for example, why they should do this in a given case, what limitations should be put on it, who should give oral evidence and if witnesses of one party give oral evidence should the witnesses of other parties, or the authors of reasoned decisions identifying and assessing public interests, also be questioned.

46. The FTT do not say why they decided to hear oral evidence. Rather, they record that the oral evidence materially influenced their assessment of the written evidence in the manner they set out when dealing with the application of the s. 35 exemptions and that they had some concerns about the evidence of Sir Alex and Mr Macnaught.

47. The FTT make a number of serious, adverse and critical findings on the evidence of those two witnesses. As appears further below, in my judgment those conclusions are soundly and convincingly reasoned from the written statements and the account given of the oral evidence. They do not go so far as saying that the FTT do not accept that they were truthful witnesses but they relate to the objectivity, balance, accuracy and competence of the two witnesses. The upshot is that although the FTT accept parts of the evidence of those two witnesses and acknowledge their expertise in respect of relevant matters, they also give convincing reasons why important aspects of the assertions, reasoning and opinion of those witnesses, and so their assessments of the ingredients and the overall position of the competing public interest issues, were flawed and unimpressive.

48. My reading of their witness statements led me to the same overall conclusion. As I commented to Mr Eadie, much of what they said warranted a “Mandy Rice Davies” side note. They are reminders of the secretive culture of the public service that the House of Commons Select Committee reported that FOIA would help to change for good (see paragraph 1 – 033 of the 4^th edition of Coppel on Information Rights Law and Practice) and thus of an approach that there should be transparency but only on departmental terms which the civil service find convincing but which courts often did not. They leave out important factors and, taken overall, lack objectivity in that they advance a “party line” (I return to this later).

49. However, notwithstanding the defects in the written evidence, the FTT in my view adopted a fair and appropriate course of giving the witnesses the opportunity to comment on matters that were of concern to the FTT before they made the serious findings that they did on their evidence and approach and the quality of their analysis and conclusions.

The alleged errors of law in the approach of the FTT in its application of s. 2(2)(b) of FOIA

50. The first limb of the first ground - Rejecting the Department’s submission that the FTT’s approach to the Department’s evidence should reflect that adopted in PII claims. The argument was put, without examples from the FTT Decision, on the general basis that this error of law resulted in the FTT wrongly failing to adopt and apply the views of the Department’s witnesses on the damage to the public interest that disclosure of the diary would cause or would be likely to cause. In written submissions the Department describe those witnesses as experts who gave clear evidence as to what the harms of disclosure of ministerial diaries would be in what is the first case in which the FTT has had to address a request for disclosure of a ministerial diary.

51. Before me, in my view correctly, Mr Eadie accepted and asserted that:

i) the PII cases he relied on relating to the weight and respect to be given to the views of the government on public interest issues are founded on two rationales namely:

a) democratic accountability (see for example the speech of Lord Hoffmann in Home Secretary v Rehman [2003] 1 AC 153 at paragraphs 49, 50, 53, 58 and the postscript at 62), and

b) institutional competence (see, for example, paragraph 57 of Lord Hoffmann’s speech in Rehman),

ii) the democratic accountability rationale did not apply to qualified exemptions under FOIA,

iii) the institutional competence rationale does have relevance to FOIA,

iv) the balancing or judgmental exercise required when assessing competing public interests includes the following elements:

a) assessing the damage to the public interest likely to flow from disclosure,

b) assessing the benefit to the public interest likely to flow from disclosure, and

c) the balancing of the two,

and

v) all of those elements should, as in a PII claim, be assessed by reference to the actual harm and actual benefit advanced on the competing sides of the argument on disclosure of the relevant information, and so its contents.

52. I also agree with Mr Eadie that the FTT were wrong at paragraph 40(a) and (b) of the FTT Decision to place reliance on conceptual and jurisdictional differences between the FOIA jurisdiction and PII claims in interpreting and applying what the Upper Tribunal said in APPGER. In those paragraphs the FTT:

i) make the obvious point that PII claims arise in a different context, have a trigger test or relevance to the litigation and raise different competing factors, and

ii) rely on Browning v IC [2013] UKUT 236 (AAC)

in rejecting the Department’s arguments on the approach, by analogy to PII claims, to be taken under FOIA to the assessment of the competing public interests in respect of a qualified exemption. The explanation of the FOIA jurisdiction in Browning was directed to disclosure and closed hearings and not to the application of s. 2(2)(b) (the public interest balance). So, I agree with Mr Eadie that that explanation does not found a valid distinction between (a) the approach to taken under FOIA to the consideration of competing public interests when it arises in respect of a qualified exemption, and (b) the approach taken to those issues in PII claims or other claims (e.g. relating to breach of a duty of confidence). This is equally the case in respect of the points identified in subparagraph (i). The reason is that when the public interest balance stage is reached under FOIA it raises the issue of where the balance of the public interest lies and thus has considerable overlap with, and so is informed by, the approach to that issue in PII claims.

53. So Mr Eadie was right in submitting that in APPGER the Upper Tribunal was saying that the approach to (a) defining and supporting by evidence and reasoning both sides of the public interest argument, and (b) a contents assessment of the competing harm and benefit, that is applied in a properly prepared PII claim should be applied by analogy to the public interest assessments in respect of the qualified exemptions under FOIA.

54. However, this does not lead to a conclusion, and in my view nothing said in APPGER indicates that the Upper Tribunal was indicating, that the weight to be given to the evidence, reasoning and views of government on a PII claim based on national security grounds was to be applied by analogy to all qualified exemptions. Indeed, it seems to me (and this reflects what we intended) that the message given by APPGER is effectively the opposite, namely that it is very important that the relevant department properly defines, supports and reasons its public interest arguments because as in many PII claims (e.g. those relating to the making of policy) the courts have rigorously tested them in the PII context and the Information Commissioner and tribunals need to do the same under FOIA.

55. An approach by analogy to that taken on national security grounds in PII claims would mean that a Department’s assessment of the public interest issues was only open to question by the FTT (and/or the Information Commissioner) if there was no evidential basis for it, or there was evidence of the existence of a lack of good faith or it was irrational (see for example R(Mohamed) v Secretary of State for Foreign Affairs (No 2) [2010] EWCA Civ 65 and 158, [2011] QB 218 at paragraphs 135, 142 to 153, 187 and 285 and Rehman at paragraphs 48, 49, 53 and 57).

56. This approach to national security is an example of the principles set out by Laws LJ in International Transport Roth GmbH v SSHD [2002] EWCA Civ 158, [2003] QB 728 at paragraphs 85 to 87, and reflects the rationales referred to in paragraph 51 above (i.e. democratic accountability and institutional competence).

57. The Department asserted before me that the FTT appear to have misunderstood its argument and that it was not suggesting that a “general degree of deference to Government” is appropriate in all cases under FOIA. In my view, the FTT should be forgiven for thinking that the Department was doing this and that generally, or in this case, the degree or deference the Department was arguing for was a high one. I say this because some of the argument before me indicated that Mr Hopkins was right to say that it appeared that in reality the Department was arguing that the deference to be given to its witnesses meant that the evidence and opinion of senior civil servants on the public interest balance should be accepted unless it was irrational, has no evidential basis or is contradicted by evidence of commensurate weight.

58. Mr Eadie clarified the Department’s position. He made clear that he was not arguing that in this case (or generally in respect of qualified exemptions) that the degree of deference to be shown to the Department’s assessment (and thus to its two witnesses) of some or all of the elements identified in paragraph 51 (iii), (iv) and (v) above was equivalent to the approach taken by the courts in PII claims (and other claims e.g. immigration see Rehman) to national security issues.

59. He made clear that his argument was based on the application of the rationale of institutional competence to the facts of the individual case. That rationale, he submitted, founded the conclusion that, on the facts of this case, the FTT had erred in law by failing to give proper or appropriate weight or deference to the evidence and opinions of the Department’s two witnesses because they were addressing matters that were within their areas of expertise and outside that of the FTT.

60. Conspicuous by its absence was any argument by reference to particular findings or reasoning of the FTT to the effect that in respect of such matters the FTT had so trespassed into issues about which it was unable to reach a properly informed opinion, or did not properly understand, and so should have deferred to or given more weight to the Department’s evidence.

61. Effectively, this generally based argument was that, having regard to the novel subject matter of this request under FOIA, the deference due to the Department’s two witnesses meant that the FTT (and the Information Commissioner before them) erred in law by embarking upon a critical analysis of:

i) firstly the Department’s evidence and its identification thereby of the relevant factors, and

ii) then their reasoning and conclusions based thereon

and what the FTT (and the Information Commissioner before them) should have done, by analogy to the approach taken on PII claims, is to effectively accept the Department’s view, and thus the validity of the reasoning and opinions of its witnesses, without subjecting them to critical analysis or such a degree of critical analysis.

62. This does not fit with my experience at the Bar or on the Bench of PII claims based on public interests similar to those that are found in the s. 35 exemptions.

63. The differences between Mr Eadie’s approach and both

i) Mr Hopkins’ submission that “proper” weight should be given to the evidence, reasoning and opinions of experienced civil servants on what is likely to happen as a result of the disclosure of certain information, and

ii) the approach taken by the FTT at paragraph 44 of the FTT Decision that a proper critical examination and assessment of Government evidence involves a judicious recognition of the extent of the Government’s expertise and the limitations of those of the Tribunal and the Information Commissioner

lie in the application of the words and issues of degree contained in the rival formulations. Such issues of degree are notoriously difficult to define in the abstract.

64. I add that:

i) I agree with Mr Hopkins and the FTT that OGC v IC [2008] EWHC 774 (Admin), [2011] 1 Info LR 743, [2010] QB 98 at paragraph 102 and Home Office and MoJ v IC [2009] EWHC 1611 (Admin) at paragraph 29, provide support for their formulations, and

ii) as mentioned above these formulations accord with the approach that has been taken in PII claims concerning information covered by a number of the qualified exemptions.

65. All of the above formulations and their rationales inevitably introduce concepts of degree because the amount of deference due or weight to be given will increase or decrease by reference to the extent to which the subject matter is peculiarly within the constitutional responsibility of government or the courts, tribunals or other statutory decision makers (here the Information Commissioner).

66. The structure of FOIA recognises and reflects the concepts of democratic accountability and institutional competence in that it contains absolute exemptions, qualified exemptions and the executive override in s. 53. The creation of qualified exemptions gives both the Information Commissioner and the FTT statutory roles as decision makers on the public interest assessment dictated by s.2(2)(b) (see ss. 50, 57 and 58 of FOIA). To my mind, this is a powerful indicator, whose strength is increased when the underlying purposes of FOIA are taken into account, that Parliament has given the Information Commissioner and the FTT the task of (and in terms of institutional competence – constitutional responsibility for) carrying out a critical examination of the evidence and argument on both sides of the public interest balance in determining whether a qualified exemption applies.

67. In my view, this points firmly in favour of the conclusion (which I reach) that a high degree of deference to either side is very unlikely to be appropriate when the Information Commissioner or the FTT are assessing the public interest balance under s. 2(2)(b) of FOIA and that they should carry out a thorough and critical analysis of the competing reasoning and analysis and the factors on which they are based.

68. This is in line with many other evidence based assessments of opinion, and involves the decision maker having regard to the expertise of the relevant witnesses or authors of reports:

i) in his assessment of the factual base of and the content of the analysis and reasoning advanced for the opinion, and

ii) when giving his reasons for reaching his conclusion on matters of risk or opinion (e.g. a court can depart from the views of an expert but must give reasons for doing so and must not develop its own theory against the evidence of an expert – see, for example, A County Council v K, D & L [2005] 1 FLR 851 at paragraphs 58 and 60).

69. At the heart of this approach is a multifaceted assessment by the decision maker, here the FTT (and earlier the Information Commissioner), of the factual bases for and the strength of the rival arguments. This has case and fact specific issues but common themes will be:

i) an identification of the relevant facts,

ii) a consideration of the relevant factors to be taken into account, and the adequacy of the evidence base for the arguments founding expressions of opinion,

iii) a consideration of whether and how the relevant factors have been taken into account in the rival analyses and reasoning,

iv) the relevant expertise and responsibilities of those advancing the rival contentions and their impact,

v) a judgmental exercise, and

vi) the giving of reasons for the conclusion reached which will generally be the best way of demonstrating the approach taken to the issues of degree and thus whether “proper” or “appropriate” weight or “judicious recognition” has been given to the relevant factors .

70. So, for example:

i) in line with my comments on the candour argument if relevant factors are not addressed this will identify flaws in an argument that are likely to detract from the weight to be given to it however experienced or expert the person advancing it may be, and

ii) the identification of inaccuracies, overstatements, lack of objectivity and unpersuasive reasoning will have the same effect.

71. It follows that, in my view, there is little between the rival general formulations of the approach to be taken and the FTT did not err in law by taking the approach set out in paragraph 44 of the FTT Decision (see paragraph 63(ii) above). But, as with other general formulations of an approach involving issues of degree, it is appropriate to go on and see whether the application of that formulation evidences a correct approach by the FTT.

72. In my view it does.

73. First, the FTT recognise the experience, position and responsibility of the two witnesses and their expertise and their experience which they describe as impressive in the areas they identify (see paragraph 80 of the FTT Decision). This is not lip service and is clearly taken into account by the FTT in concluding for example that:

i) assertions the witnesses made in respect of quarterly information releases “fully met” the public interest in transparency regarding who has access to the Minister were inaccurate and demonstrated a lack of objectivity which undermined confidence in their evaluative judgments (paragraphs 82 and 83),

ii) in his oral evidence Sir Alex demonstrated a determination to avoid directly conceding the indefensibility of things he had said and a keenness to repeat generalised lines to take rather than give direct answers to questions (paragraph 84), and

iii) Sir Alex’s written evidence by reference to his experience that disclosure of Ministerial diaries would inhibit and distort the need for safe space for Ministers and senior officials to meet each other as frequently or infrequently as they wish to discuss policy, was puzzling.

These are properly reasoned findings based on matters well within the experience, responsibility and competence of the FTT that clearly undermine the persuasiveness of the arguments advanced by the Department’s witnesses and heighten concerns that the FTT had on reading their statements (see paragraph 80). There are others.

74. Also, and to my mind importantly, there is the surprising assertion by both Sir Alex and Mr Macnaught that disclosure of the diary would encourage Ministers and officials to adjust their appointment schedules by building in unnecessary and pointless or futile meetings or diary appointments for presentational purposes (see paragraphs 91(c) and 97 of the FTT Decision).

75. Some of that description was not accepted by the witnesses. For example, as the FTT record “pointless” was included in the skeleton argument and not the evidence. However, I agree with the FTT that it is a fair characterisation of the written evidence and it seems to me that the written answers of the witnesses to disclaim that the meetings would be “pointless” because the point of them would be the impression made upon the press adds to, rather than subtracts from, the problems created by this evidence and confirms that the purpose of the adjustments was presentational or as the FTT describe it “window dressing” (see paragraph 97 of the FTT Decision).

76. On my reading of the parts of the statements advancing this argument I was unclear whether the risk of harm to the public interest that was being asserted was that false or misleading entries would be made in diaries for presentational purposes or whether for those purposes unnecessary meetings and appointments would be arranged, would take place and would be entered. My reading of the FTT Decision is that it was the latter.

77. So it was being asserted that disclosure would:

i) harm, or give rise to a real risk that harm would be caused to, the public interest in promoting the efficient and productive use of the time of Ministers and officials with the purpose of promoting efficient and properly informed and tested decision making (the Public Interest Purpose). And that the reason for this was or would be that:

ii) undefined Ministers and officials would deliberately cause that harm or create that risk of harm by taking steps that they regarded as unnecessary for the Public Interest Purpose and so pointless or futile for its fulfilment.

78. As such a risk of harm is based on Ministers and officials acting contrary to their better judgment and duties to promote the public interest, it seems to me that if it existed it would found an argument that supports disclosure so that the press and the public can obtain information to test whether a Minister or his officials are, deliberately and contrary to their better judgment, taking such steps and so in their opinion wasting their time and damaging the achievement of the Public Interest Purpose.

79. But, in my view, the reasoning in support of the existence of this risk of harm is so flawed that it cannot be accepted and has to be explained as a failure by the witnesses to stand back and properly assess what they were saying. So, like the FTT, I cannot accept that there is any such risk of harm. However, if there is, it would be a factor supporting disclosure in the public interest.

80. The reasons the FTT give for this conclusion are valid and persuasive. I add that in my view the flaws in the reasoning advanced include a failure to address:

i) how the alleged risk of harm fits with the proper performance by Ministers and their officials of their duties (and in the case of the latter the Civil Service Code),

ii) whether either of the witnesses or this Minister would act in that way and how they would go about doing this,

iii) if as one would expect they would say that they would not why it is said anyone worth his salt would act in such a damaging way,

iv) how it fits with the Department’s evidence on the need to provide explanations on disclosure to ensure that a misleading impression is not given and the public is properly informed as to the way in which the Minister is carrying put his duties to further the public interest, and on a pragmatic level

v) how the unnecessary steps or engagements are to be identified and thus which faction or factions of the media or public they are to be directed to, and

vi) why anyone would take the risks involved in being faced with having to explain this course of action.

81. In my view, sadly these flaws mean that this aspect of evidence of the two witnesses falls way below the standards that the public and the FTT are entitled to expect of government departments and senior civil servants in advancing public interest arguments. Indeed, in my view, they show that this aspect of their evidence should be roundly rejected and taken into account as a factor that decreases the trust and reliance that can be placed on their overall evaluation of the public interest. If equivalent obvious flaws existed in the advice to a client from a lawyer, a doctor or other expert, the client would be fully entitled to seek, and would be unwise not to seek, a second opinion.

82. Accordingly, in my view the FTT were clearly entitled to and indeed were right to proceed on the bases that parts of the views and reasoning advanced by the Department’s witnesses were unconvincing and undermined the weight to be given to their objectivity, accuracy, and reasoning as a whole. Having done that the FTT properly and fairly identified the aspects of their evidence and argument that they accepted.

83. Conclusion on the first limb of the first ground. For the reasons set out above I reject it.

84. The second limb of the first ground – taking a generic or general approach to the public interest in disclosure. This can be dealt with much more shortly.

85. The requester did not take part and there was no evidence from him. This ground was based on what the FTT said at paragraph 48(b) of the FTT Decision which I comment on at paragraph 35 above. In isolation that subparagraph can be said to support this ground but when it is read in the context of the FTT Decision as a whole (and in particular paragraphs 39 and 46 thereof) the basis for this ground falls away. In my view, a fair reading of the FTT Decision shows that the FTT recognised the need to identify with sufficient particularity the arguments on both sides of the benefits / detriment arguments and their approach summarised at paragraph 90 of the FTT Decision shows that the FTT linked the generic and general arguments in favour of disclosure to the contents of the diary and so of the information sought.

86. Conclusion. This limb of the first ground is based on an unfair and incorrect reading of the FTT Decision and fails.

Are entries held for non-Ministerial activities “held” by the Department?

87. Section 1(4) of FOIA provides that the information about which the requester is to be informed and is to communicated to him (subject to the provisions of FOIA) is information held at the time the request is received (except that account may be taken of any amendment or deletion made between that time and the time when the information is to be communicated being an amendment or deletion that would have been made regardless of the receipt of the request). No such amendment or deletion was relied on in this case.

88. Section 3(2) of FOIA provides that:

(2) For the purposes of this Act, information is held by a public authority if—

(a) it is held by the authority, otherwise than on behalf of another person, or

(b) it is held by another person on behalf of the authority.

89. In one sense this ground of appeal is or is largely academic on this appeal because of the way in which the exemption in s. 40(2) of FOIA was applied to exclude from disclosure entries relating to non-Ministerial activities. But the agreement of the Department to the Information Commissioner’s approach and that of the FTT to the s. 40(2) exemption was on the basis that, contrary to its argument, it was concluded that the information relating to non-ministerial activities was held by the Department. Also, the course taken was to remove only identifying information rather than the whole entry, which would be the result if information in the diary relating to non-ministerial activities was not held by the Department. (There was no appeal against this approach).

90. The FTT Decision records a level of agreement to the application of s. 3(2) which was not reflected in the arguments before me but no point was taken that the Department was precluded from raising any of the arguments it did on the appeal, or indeed that it was raising new arguments.

91. As before the FTT, both the Department and the Information Commissioner unsurprisingly referred to and relied on the lead decision of the Upper Tribunal in University of Newcastle upon Tyne v IC and BUAV [2011] UKUT 185 (AAC) where Upper Tribunal Judge Wikeley approves the approach taken by the FTT to the application of s. 3(2) of FOIA. However they argued that its correct application led to different results.

92. The Newcastle University case predates Sugar (No 2) and the decision of the Supreme Court therein illustrates difficulties that arise in considering whether information is “held” for the purposes of FOIA and so whether its regime for determining whether that information should be disclosed is engaged. I shall return to it.

93. In the Newcastle University case Judge Wikeley said with my emphasis:

20. A public authority is under a duty to confirm or deny “whether it holds information of the description specified in the request” and, if so, to communicate that information to the requester, subject to any exemptions (FOIA, section 1(1)). As the tribunal correctly noted, FOIA provides no precise definition of what it means to “hold” information. However, as the tribunal also noted, section 3(2) of FOIA provides a degree of explanation: [and he set out the subsection]

21. The tribunal explained the effect of section 3(2) in the following terms:

“[47] The effect of this subsection is to confirm the inclusion of information within the scope of FOIA s1 which might otherwise have been arguably outside it. The effect of paragraph (a) is that information held by the authority on behalf of another is outside s.1 only if it is held solely on behalf of the other: if the information is held to any extent on behalf of the authority itself, the authority ‘holds’ it within the meaning of the Act. The effect of paragraph (b) is that the authority ‘holds’ information in the relevant sense even when physically someone else holds it on the authority’s behalf.”

22. I accept that as an accurate analysis of the impact of section 3(2). Indeed, any other construction would be inimical to the purpose of FOIA, a statute which is, after all, designed “to make provision for the disclosure of information held by public authorities” (according to its long title).

23. In a passage which was central to its conclusions the tribunal then reasoned as follows:

“[47] ‘Hold’ is an ordinary English word. In our judgment it is not used in some technical sense in the Act. We do not consider that it is appropriate to define its meaning by reference to concepts such as legal possession or bailment, or by using phrases taken from court rules concerning the obligation to give disclosure of documents in litigation. Sophisticated legal analysis of its meaning is not required or appropriate. However, it is necessary to observe that ‘holding’ is not a purely physical concept, and it has to be understood with the purpose of the Act in mind. Section 3(2)(b) illustrates this: an authority cannot evade the requirements of the Act by having its information held on its behalf by some other person who is not a public authority. Conversely, we consider that s.1 would not apply merely because information is contained in a document that happens to be physically on the authority’s premises: there must be an appropriate connection between the information and the authority, so that it can be properly said that the information is held by the authority. For example, an employee of the authority may have his own personal information on a document in his pocket while at work, or in the drawer of his office desk: that does not mean that the information is held by the authority. A Government Minister might bring some constituency papers into his departmental office: that does not mean that his department holds the information contained in his constituency papers.”

24. There is no dispute but that the example given in the final sentence of this paragraph was taken from the official Explanatory Notes to FOIA (at paragraph 31).

The Upper Tribunal’s analysis

The approach taken by the First-tier Tribunal

27. I have included the lengthy paragraph [47] of the tribunal’s decision in its entirety above (at paragraph 23) for one simple reason. I regard the approach set out there to the question of whether a public authority “holds” information as an accurate statement of the law.

28. The test that FOIA uses is whether the public authority “holds” the requested information. The choice of statutory language must be significant. The test is not whether the public authority “controls” or “possesses” or “owns” the information in question; simply whether it “holds” it (as was observed by the information tribunal in Quinn v Information Commissioner [(EA/2005/0010) at [50]). “Hold”, as the present tribunal also noted, is an ordinary English word and is not used in some technical sense in the Act. That construction is also supported by one of the leading texts, Information Rights: Law and Practice by Philip Coppel QC (3^rd edn, Hart Publishing, 2010), which observes that FOIA “has avoided the technicalities associated with the law of disclosure, which has conventionally drawn a distinction between a document in the power, custody or possession of a person” (p.339, para. 9-009). The tribunal’s comments are consistent with the approach taken by Lord Reid in Brutus v Cozens [1973] AC 854 (at 861), namely that "The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law.”

29. More recently Lord Hoffmann, in explaining the significance of those dicta from Brutus v Cozens, noted that “many words or phrases are linguistically irreducible in the sense that any attempt to elucidate a sentence by replacing them with synonyms will change rather than explain its meaning” (Moyna v. Secretary of State for Work and Pensions [2003] UKHL 44 at paragraph 23). The tribunal in the present case was plainly alive to that very real danger. It (quite properly) did not seek to re-define or replace the word “hold” in any way. True, the tribunal ruled that “‘holding’ is not a purely physical concept”, but that was necessary on a purposive construction of the legislation, bearing in mind the clear terms of section 3(2) of FOIA. Furthermore I do not regard the tribunal’s reference to the need for “an appropriate connection between the information and the authority” as a misguided attempt to replace the statutory language with its own “rather nebulous” test (as Mr Pitt-Payne put it). On the contrary, the tribunal was simply pointing to the need for the word “hold” to be understood as conveying something more than the simple underlying physical concept, given the intent behind section 3(2).

30. In the light of the findings of fact that it had made, the tribunal was entirely justified in reaching the conclusion that it did in paragraphs [54] and [55] of its reasons (see paragraph 26 above).

The University’s submissions based on McBride and Digby-Cameron

33. The information tribunal decisions in McBride v Information Commissioner and Ministry of Justice and Digby-Cameron v Information Commissioner do not take the University any further forward.

34. In McBride the issue was whether papers in the possession of the Privy Council Office (PCO) (now part of the Ministry of Justice) but so retained on behalf of the University Visitor were “held” for the purposes of FOIA. The information tribunal was “entirely satisfied” that the PCO held the information in question on its own behalf as a public authority – the PCO’s role in Visitor cases was integral to its own functions [31]. The tribunal referred to the PCO’s ability to manage and control that information, to edit or delete it, to have unrestricted access to it and to determine wider dissemination.

35. In Digby-Cameron – a summary hearing under rule 10 of the former procedural rules – the issue was whether the requester was able to use FOIA to obtain a transcript of an inquest hearing from the local authority which had provided the administrative support to the coroner. The tribunal took into account (at [14] & [15]) the considerations outlined in McBride and concluded that on the facts the local authority held the information solely on behalf of the coroner [19].

36. The tribunal below in the present case concluded as follows on the significance of McBride and Digby-Cameron:

“[49] … Depending on the particular facts of a case, the features referred to in those cases may be useful matters to consider when looking at whether the public authority holds the information, but they should not be read as if they had been intended as definitive tests of whether information is ‘held’, and we consider there is no warrant in the wording of the statute for regarding them as such…”

37. Again, I agree with the tribunal’s analysis. It is noteworthy that in McBride itself the tribunal there expressly rejected a submission that the issue was determined by the respective statuses of the PCO and the Visitor:

“[27] … It is also not an issue that turns on who owns the information, nor on whether the PCO has exclusive rights to it, nor indeed on whether there is any statutory or other legal basis for the PCO to hold the information. Rather, the question of whether a public authority holds information on behalf of another is simply a question of fact, to be determined on the evidence.”

Conclusion

44. My conclusion, therefore, is that the First-tier Tribunal did not err in law on the first preliminary issue. In particular it correctly applied the meaning of “hold” as an ordinary English word to be determined as an issue of fact, reaching a conclusion that was justified by its own matrix of findings of fact. It did not actually need to consider whether the ordinary meaning of “hold” in sections 1(1) and 3(2) of FOIA was displaced on the basis of some close textual analysis of section 24(1) of ASPA.

94. This reasoning adopts and sets out by reference to well known authorities (and there are many more to the same effect) the approach to be taken to the construction and application of ordinary English words in a statute.

95. Unsurprisingly both parties adopted the “ordinary English word” approach set out by Judge Wikeley in paragraph 23 and following of the passages I have cited from his decision in the Newcastle University case. The main difference between them was that the Department argued that there was not a “sufficient connection” between the entries relating to non-Ministerial matters to found the conclusion that they were held by the Department. The focus of this argument was that contents of those entries had nothing or insufficient to do with the activities of the Department to found the sufficient connection.

96. In my view, the application of this approach indicates that:

i) before an authority can be said to “hold” information as a matter of ordinary usage of language it will have been given it, or have obtained it, or have created it, and

ii) the reasons why it was given it, or obtained it or created it inform on whose behalf it holds the information and thus whether it holds the information soley for another person, or solely or partly for itself.

97. It follows that the impact of the reasons why the authority has the relevant information:

i) explains the points made in Judge Wikeley’s citation in the Newcastle University case, and the tribunal in McBride v IC and MoJ (EA/2007/0105) at paragraph 31, that possession is not enough, and can provide the basis for

ii) a sufficient connection between the information and the authority to found the conclusion that it holds that information.

98. Sugar (No 2) and its application in UCAS v IC and Lord Lucas [2014] UKUT 0557 (AAC) are not directed to the definition in s. 3(2) but to words of limitation by reference to respectively purpose in Schedule 1 Part VI (the BBC in respect of information “held for purposes otherwise than journalism”) and secondary legislation (UCAS with respect to defined functions – the provision and maintenance of a central applications and admissions service in relation to defined institutions).

99. The issues in the BBC and UCAS cases relate to qualifications of the general application of FOIA to information “held by public authorities” but they are relevant by analogy because they apply a purposive approach and, as a matter of ordinary usage, information held by A on behalf of B is held so that B can use it for B’s purposes or functions.

100. Lord Phillips described the divide in the Supreme Court between Lord Wilson on the one hand and the four other Justices on the other as whether the relevant definition meant “information held solely / or predominantly for purposes other than journalism” (see paragraph 61).

101. Lord Walker gives the main judgment of the majority. He concluded that (apart from a de minimis approach which at paragraph 73 he confirmed was unhelpful in the context of the application of the definition) there were only two categories: one is information held for purposes that are in no way those of journalism, and the other is information held for the purposes of journalism, even if it is also held for other (possibly more important) purposes (see paragraph 75 cited above at paragraph 9 hereof). He based that view on the language and legislative purpose of FOIA (which he describes in paragraphs 76 and 77 also cited above) and continues:

[78] In this case, there is a powerful public interest pulling in the opposite direction. It is that public service broadcasters, no less than the commercial media, should be free to gather, edit and publish news and comment on current affairs without the inhibition of an obligation to make public disclosure of or about their work in progress. They should also be free of inhibition in monitoring and reviewing their output in order to maintain standards and rectify lapses. A measure of protection might have been available under some of the qualified exemptions in Part II of FOIA, in particular those in sections 36 (Prejudice to effective conduct of public affairs), 41 (Information provided in confidence) and 43 (Commercial interests). But Parliament evidently decided that the BBC's important right to freedom of expression warranted a more general and unqualified protection for information held for the purposes of the BBC's journalistic, artistic and literary output. That being the purpose of the immunity, section 7 and Schedule 1 Part VI, as they apply to the BBC, would have failed to achieve their purpose if the coexistence of other non-journalistic purposes resulted in the loss of immunity.

[79] That is confirmed by the language of these statutory provisions. The disclosable material is defined in terms ("held for purposes other than those of journalism, art or literature") which are positive in form but negative in substance. The real emphasis is on what is not disclosable – that is material held for the purposes of the BBC's broadcasting output. It is the most natural construction, which does not depend on reading in any words. That was the view formed both by Irwin J (see especially paras 55 to 58 and 63 to 65 of his Sugar judgment) and by Lord Neuberger MR (see especially paras 40 to 42, 44 to 46, and 49 of his judgment). Mr Eicke QC was critical of para 49, submitting that it assumed the very answer that the Court of Appeal was seeking to justify. I consider that criticism to be unjustified, though the reasoning was perhaps rather compressed. The unspoken premise is that Parliament must have intended to lay down a workable test, and both an "exclusively" and a "predominantly" test would raise almost insoluble problems in their practical application.

102. The need for a continuing connection to found the conclusion that the information was, or continued to be, held by the BBC to some extent for journalism arose in Sugar (No 2). The following views were expressed:

[67] However, Lord Neuberger accepted that archived material would not, as such, fall within the protection afforded by the definition. I consider that he was right to do so. Disclosure of material that is held only in the archives will not be likely to interfere with or inhibit the BBC's broadcasting functions. It ought to be susceptible to disclosure under the Act. If possible "information held for purposes other than those of journalism, art or literature" should be given an interpretation that brings archived material within that phrase. Can this be achieved? I believe that Lord Walker has the answer. He has concluded, as have I, that the protection is aimed at "work in progress" and "BBC's broadcasting output". He suggests that the Tribunal should have regard to the directness of the purpose of holding the information and the BBC's journalistic activities. I agree. Information should only be found to be held for purposes of journalism, art or literature if an immediate object of holding the information is to use it for one of those purposes. If that test is satisfied the information will fall outside the definition, even if there is also some other purpose for holding the information and even if that is the predominant purpose. If it is not, the information will fall within the definition and be subject to disclosure in accordance with the provisions of Parts I to V of the Act. (Lord Phillips)

[83] In my view the correct approach is for the Tribunal, while eschewing the predominance of purpose as a test, to have some regard to the directness of the purpose. That is not a distinction without a difference. It is not weighing one purpose against another, but considering the proximity between the subject-matter of the request and the BBC's journalistic activities and end-product. As Irwin J observed in the financial information case, para 87, in the context of a critique of what was "operational":

"The cost of cleaning the BBC Boardroom is only remotely linked to the product of the BBC."

[84] I respectfully agree with the measured comments of Lord Neuberger MR (para 55):

"In my view, whatever meaning is given to 'journalism' I would not be sympathetic to the notion that information about, for instance, advertising revenue, property ownership or outgoings, financial debt, and the like would normally be 'held for purposes . . . of journalism'. No doubt there can be said to be a link between such information and journalism: the more that is spent on wages, rent or interest payments, the less there is for programmes. However, on that basis, literally every piece of information held by the BBC could be said to be held for the purposes of journalism. In my view, save on particular facts, such information, although it may well affect journalism-related issues and decisions, would not normally be 'held for purposes . . . of journalism'. The question whether information is held for the purposes of journalism should thus be considered in a relatively narrow rather than a relatively wide way."

That is the best way forward in order to strike the difficult balance of competing interests for which Parliament must be taken to have been aiming. But it will still leave some difficult decisions for the Commissioner and, on appeal, the Tribunal. There cannot be (in the words of Davis J, para 57) any "unequivocal, bright-line" test. (Lord Walker)

[106] As for the point at which information will cease to be held to any significant degree for the purposes of journalism and become held instead, say, solely for archival purposes, that necessarily will depend on the facts of any particular case and involve a question of judgment. I too agree with Lord Walker that the central question to be asked in such a context will be, not which purpose is predominant, but rather whether there remains any sufficiently direct link between the BBC's continuing holding of the information and the achievement of its journalistic purposes. (Lord Brown)

[112] Lord Phillips discusses the position regarding archived material. We were not given any clear picture when or on what basis archiving might occur. I assume that the reference is to material not envisaged as having any current purpose, but stored for historical purposes or against the possibility of some unforeseen need to revisit, or produce evidence of, past events. A library maintained for current reference would in contrast contain material held for the purposes of journalism, art or literature. (Lord Mance)

103. In Sugar (No 2) it was common ground and clear that the BBC held the relevant information and the purposive argument addressed the intention of Parliament in relation to the impact of the powerful public interest argument against the application of FOIA to information held by the BBC for certain purposes. The conclusion of the majority was that the emphasis of the purpose and the language of the relevant definition was on what information held by the BBC was not to be subject to the FOIA regime and thus disclosable under it unless covered by an exemption, and that this emphasis founded the conclusions that:

i) a predominant purpose test was not what Parliament intended, and so

ii) using Lord Phillips’ description of the divide in the Supreme Court the relevant test referred to information held solely for purposes other than journalism, and converting the definition from its positive form to its negative effect of excluding information from the FOIA regime (per Lord Walker) it had the effect that if the information was held by the BBC to any extent for the purposes of journalism it was excluded from the FOIA regime, and

iii) the correct approach to determining whether information was held, or continued to be held, to any extent for the purposes of journalism (or solely for purposes other than journalism) is to consider whether there is or remains a sufficiently proximate or direct link between the BBC’s holding of the requested information and the achievement of its journalistic purposes.

104. The majority were also of the view that a dominant, principal or primary approach was not workable in the application of what they concluded Parliament intended in relation to the determination of what information held by the BBC was and was not to be covered by the FOIA regime.

105. Returning to the entry requirement to the FOIA regime in ss.1(4) and 3(2) (whether information is “held” by the authority “otherwise than on behalf of another person” or is held “by another person on behalf of the authority”), Judge Wikeley’s approval of the approach of the FTT extends to the citations of paragraph 47 in paragraphs 21 and 23 of his decision. Neither of the parties before me:

i) argued that a predominant (dominant, principal or primary) purpose approach between entries relating to Ministerial and non-Ministerial activities was appropriate, or

ii) expressly relied on or adopted the citation in paragraph 21 and its approval. As to that I am concerned only with the interpretation and application of s. 3(2)(a) of FOIA.

106. In respect of the s. 3(2)(a) entry requirement to the FOIA regime the purposive approach to the application of the ordinary English words used by Parliament does not, in contrast to Sugar (No 2), introduce a public interest against disclosure pursuant the FOIA regime. Rather, it engages the public interests in favour of disclosure pursuant to that regime identified by Lord Walker and cited in paragraph 9 above. By analogy with the approach of the majority in Sugar (No 2) to what they effectively identified as the overall public interest Parliament intended to promote (i.e. exclusion from the FOIA regime of information held for journalistic purposes), I consider that Parliament’s intention to promote the underlying purposes of FOIA (i.e. disclosure subject to appropriate safeguards of information by public authorities) means that:

i) Judge Wikeley’s approval in paragraph 22 of the approach of the FTT in the Newcastle University case to s. 3(2)(a) of FOIA is correct, and so

ii) a predominant (dominant, principal or primary) purpose approach between different types of information would be incorrect.

107. What, if any, issues arise under s. 3(2)(b) in respect of a public authority being able to obtain information from a third party that the third party holds for mixed purposes, and so not solely for the third party (or adopting the approach in the UCAS case is held to any (or any significant – not de minimis[1]) degree for the authority, is not an issue that arises in this case and, in my view, it is not addressed or answered in the passages cited by Judge Wikeley at paragraphs 21 and 23 of his decision in the Newcastle University case and approved by him.

108. The Department’s argument that the FTT did not identify a sufficient connection to establish that the non-Ministerial information was held by the Department. The starting point to that argument is non-controversial and is that there is a valid distinction to be made between (a) personal, party or constituency information and (b) information relating to a Minister’s role as a Minister.

109. It is also not controversial that the primary reason why the non-Ministerial information is entered in the diary is to avoid clashes and that some of the entries would enable the Department to know where the Minister was, or was going to be, or had been, and so might assist in decisions being made on whether he should be or how he should be contacted when so engaged. It was not asserted that what the entries showed he was actually doing at those times was in any way connected to the actual performance of his ministerial duties, or that they might show that he was not devoting sufficient time to those duties or missed any important meetings relating to them.

110. The argument is advanced on two bases. First that the non-Ministerial information was never “held” by the Department and secondly at the time of the request if it had been so held this was no longer the case.

111. The approach of the Supreme Court in Sugar (No 2) to the connection required between the information (and thus its content), the Department and the achievement of its purposes is relevant at both stages of the argument. All of the passages cited on this (see paragraph 102 above) introduce concepts of degree to establish the direct connection between the information and the purposes for which it is held. In the present context those concepts are informed by a consideration of whether Parliament intended the information to fall within the ambit of the checks and balances relating to its disclosure contained in FOIA, and whether, and when, it intended that information that had been within the ambit of the FOIA regime to fall out of it.

112. This is inevitably a fact sensitive exercise and one applying the approach of Lord Mustill (cited in paragraph 80 of Sugar (No 2)) on which decision makers applying the right approach can reach different answers.

113. In my view, at both stages of the argument the point made in a different context in Plowden that information should be considered as an appropriate package as well as by reference to its individual parts is relevant. This means that the package of information provided by the diary is relevant to determining whether it is held by the Department.

114. It is not controversial that the Minister gave the information to the Department on the express or implied basis that it could be entered into the diary in the way that it was for the Departmental purposes referred to in paragraph 109 above. In my view, this establishes a sufficiently direct connection between the content of the entries and the reasons why the Department was given them, recorded them and used them for its purposes (i.e. the operation of the Minister’s private office) to establish that the non-Ministerial information was held by the Department when it was entered into the diary.

115. That leaves the question whether that information ceased to be so held when those reasons for it being given and recorded had passed and so when the entries related to the past rather than the present and the future. Without putting a specific time on the change, the Department argued that at that stage it was supplying electronic storage facilities for information the contents of which no longer had any or any sufficient connection with the Department and that the possibility that a query may arise over what the Minister was doing is hypothetical and does not establish a sufficient connection.

116. Evidence of a specific agreement between the Department and the Minister on how it would treat and hold historical non-Ministerial information may have been relevant but I agree with the Department that its absence does not point to a conclusion that the information remains held by the Department.

117. In my view, a relevant factor in determining whether the information remains held by the Department is whether the reasons why it was given, recorded and used by the Department still engage an exemption that links or connects the information to the authority (the Department in this case). If it does, this points to a conclusion that it remains within the ambit of the checks and balances of the FOIA regime. The continuing applications of other exemptions, for example, that given by s. 40 (personal information) would be less relevant for this purpose.

118. In my view:

i) the fact that the diary relates to the past does not mean that the exemption in s. 35(1)(b) ceases to apply to it and the reasons for including the non-Ministerial information in it indicate that as a package, and individually, all of its contents remain so linked to the Department, and

ii) that link provides a sufficient connection to found the conclusion that the non-Ministerial information remains held by the Department after the dates of those entries.

119. Accordingly, I agree with the FTT that all of the contents of the diary continue to be held by the Department after the passing of the events.

120. In any event, in my view it was open to the FTT to conclude that in all the relevant circumstances of this case as the information was gathered for Departmental purposes it remained held by the Department at the date of the request.

121. In my view the time span and the continued interest in both the decision making process and the decisions made in the period covered by the request (May 2010 to April 2011) mean that the request (made in June 2011) did not relate to an archive – and this was not argued.

122. Conclusion. The FTT did not err in law in concluding that entries relating to non-Ministerial activities were held by the Department.

Signed on the original

Mr Justice Charles

President of the UT(AAC)

30 March 2015

[1] If that concept is applicable to s. 3 of FOIA – see Lord Walker in Sugar (No 2) at paragraph 73

Upper Tribunal (Administrative Appeals Chamber)