Freedom of Information Act: Under orders to disclose

The Information Tribunal has recently decided two noteworthy appeals under the Freedom of Information Act 2000 (FOIA). While both decisions are important in their own right, they also highlight the significant risks for public authorities of adopting an unduly blanket approach when responding to information requests under the FOIA.

In Department of Health v Information Commissioner [2008], the tribunal addressed the important question of when a public authority may lawfully refuse to disclose a commercial contract which has been requested under the FOIA. The contract in question was a substantial and high value public procurement contract for the provision of a nationwide e-recruitment service for the National Health Service. The Department of Health had refused to disclose the contract on the basis that it was a confidential and commercially-sensitive contract which was exempt from disclosure under a variety of exempting provisions contained within part II of the FOIA. The Information Commissioner decided that the contract should have been disclosed.

On appeal to the tribunal, the Department of Health sought to argue that the information in the contract was exempt, particularly on the basis that: the information in the contract was confidential (application of section 41 FOIA); the disclosure of the contract would be likely to prejudice the commercial interests of the Department of Health and the contractor (application of section 43); and the disclosure was prohibited under relevant public procurement legislation (application of section 44). The tribunal decided that the Department of Health had erred in withholding the entire contract. It held that substantial parts of the contract were in fact disclosable under the FOIA.

This is a landmark decision under the FOIA which is likely to impact not only on public authorities but also on the many private sector organisations that have contracts with them. The decision makes clear that it cannot safely be assumed - either by public authorities or contractors - that public authority contracts are immune from disclosure simply because they are public procurement contracts, because they are designated as 'confidential' or because they contain information which was commercially sensitive at the time the contract was entered into.

In Home Office & Ministry of Justice v Information Commissioner [2008], a request was made by the representative of a media organisation for disclosure of information relating to how the Home Office had responded internally to some 48 FOIA requests which had previously been made by that organisation. The applicant subsequently confirmed that the information was being requested because he was concerned that the Home Office had deliberately discriminated against the organisation in its handling of the earlier requests.

The Home Office refused the request, which it labelled a 'meta-request', on the basis that the requested information was exempt from disclosure under section 36 (disclosure likely to prejudice the effective conduct of public affairs). The Commissioner upheld a complaint about the refusal to disclose. In their appeal before the tribunal, the appellants sought to defend the decision to withhold the requested information under section 36. They also made clear that they were seeking general guidance from the tribunal, on behalf of the Government, about how to handle similar meta-requests in future.

In a robust judgment, the tribunal dismissed the appellants' appeal. The tribunal made clear that, contrary to the case presented by the appellants, there was no basis for treating information relating to underlying FOIA processes as any less susceptible to disclosure under the FOIA than other types of information. It may be that, on the facts, a particular request can be treated as vexatious under section 14 of the FOIA. Alternatively, it may be that the request can be refused on costs grounds under section 12. Alternatively, it may be that the authority fees provisions contained in section nine of the FOIA will be engaged in respect of the request.

However, the authority will err in law if it simply assumes that such requests constitute a special class of information request which can typically be refused under the FOIA. The tribunal went on to find that, on the facts of the case, while the section 36 exemption was engaged in respect of the particular requested information, the public interest still weighed in favour of its disclosure. Finally,
the tribunal went on to consider the appellants' argument that, if reliance could not be placed on the section 36 exemption, the tribunal should allow the appellants to rely on other exemptions which had not been identified at any time prior to the tribunal proceedings. The tribunal rejected that argument on the basis that there was no reasonable justification for allowing the appellants to rely on the new exemptions at such a late stage.

The tribunal's decision is now being appealed to the High Court.

Anya Proops is a barrister at 11KBW and counsel for the Information Commissioner in both Department of Health v Information Commissioner and Home Office v Information Commissioner.