Home Office & Anor v The Information Commissioner [2009] EWHC 1611 (Admin)

[2009] EWHC 1611 (Admin)

Case No CO/12241/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 6 July 2009

Before

MR JUSTICE KEITH

Between

(1) The Home OfficeAppellants

(2) The Ministry of JusticeAppellant

The Information CommissionerRespondent

Mr James Eadie QC and Mr Gerry Facenna (instructed by the Treasury Solicitor) for Appellants

Ms Anya Proops (instructed by the Office of the Information Commissioner) for Respondent

Hearing Hearing dates: 22-23 June 2009

Judgment

Introduction

[1]Requests for information from public authorities have been commonplace since the Freedom of Information Act came into force. But the right to information which the Act created has spawned a number of requests for information about the way a previous request has been handled. Within government these requests about previous requests are called “meta-requests”, and the information being requested is referred to as “meta-data”. The Home Office is unaware of any case in which a government department has agreed to provide such information under the Act. This case is all about such a meta-request made to the Home Office. It comes to the Court as an appeal from the Information Tribunal. All references in this judgment to sections of an Act are references to sections of the Freedom of Information Act 2000 (“the Act”) unless otherwise stated.

The statutory framework

[2]The Act came into force on 1 January 2005. It was Parliament’s response to calls for the ending of secrecy in government. Its core provision is section 1(1), which provides:

“Any person making a request for information to a public authority is entitled – (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him.”

However, the duty to provide such information is not unlimited. Part II of the Act relates to information which is exempt from disclosure. Some of the exemptions in Part II are absolute, which means that information which falls within the ambit of those exemptions will be exempt from disclosure. However, many of the exemptions in Part II are qualified exemptions.

(b) Thus, section 2(2) provides:

“In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that – (a) the information is exempt information by virtue of a provision conferring absolute exemption, or (b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.” (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him.” (a) the information is exempt information by virtue of a provision conferring absolute exemption, or (b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”

[3]The provision in Part II which is relevant for present purposes is section 36(2). That contains one of the qualified exemptions to which the public interest test in section 2(2)(b) applies. Section 36(2) provides, so far as is material:

“Information … is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act – … (b) would, or would be likely to, inhibit – (i) the free and frank provision of advice, or (ii) the free and frank exchange of views for the purposes of deliberation, or (c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.”

In relation to information held by a government department in the charge of a Minister of the Crown, “a qualified person” for the purpose of section 36(2) means “any Minister of the Crown”: see section 36(5)(a). … (b) would, or would be likely to, inhibit – (i) the free and frank provision of advice, or (ii) the free and frank exchange of views for the purposes of deliberation, or (ii) the free and frank exchange of views for the purposes of deliberation, or (c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.”

[4]It is important to emphasise that information about how previous requests were handled is not accorded any special treatment in the Act. There is no provision in the Act which specifically permits requests about such information to be refused. Indeed, the Information Commissioner (“the Commissioner”) is concerned about calling such requests “meta-requests”. Such a label could give the impression that they have a status which the Act does not give them. The Information Tribunal (“the Tribunal”) recognised that when it said in its decision in this case that “Parliament intended that meta-requests should be dealt with in the same way as any other requests otherwise Parliament would have provided for this, which in our view they have not done so”.

[5]There is an elaborate structure for challenging the refusal by a public authority of a request for information on the basis that the information is covered by one of the exemptions. The person or body who requested the information may apply to the Commissioner for a decision whether the request was dealt with in accordance with the requirements of Part I of the Act. If the Commissioner decides that the information should have been provided, he will identify what steps the public authority must do by way of compliance. An appeal against the Commissioner’s decision lies to the Tribunal. The Tribunal is entitled to review any findings of fact on which the Commissioner’s decision was based, and if it considers that the decision was flawed, it must allow the appeal or substitute such other decision as the Commissioner could have made. An appeal against the Tribunal’s decision lies to the High Court, but only on a point of law.

The relevant facts

[6]The previous requests for information. Between 10 February 2005 and 4 January 2007, Matthew Davis, a journalist who works for John Connor Press Associates Ltd (a news and picture agency), made 48 requests for information from the Home Office. They ranged from the serious to the frivolous. Much of the information Mr Davis sought was held by the National Offender Management Service, which was part of the Home Office until May 2007 when it became part of the Ministry of Justice (which is why the Ministry of Justice has been included in these proceedings), but I shall refer to the Home Office and the Ministry of Justice collectively in this judgment as the Home Office. The Home Office says that where it was possible for the information to be disclosed compatibly with the Act, it was disclosed to Mr Davis, but some of the information requested was not.

[7]The current request. On 4 January 2007, Mr Davis sent an e-mail to the Home Office which requested information about his previous requests. The request was in these terms:

“Please could you provide me with any documents relating to internal communication within Government and Government departments relating to the use of the Freedom of Information Act by Matthew Davis or John Connor Press Associates Ltd. These can be copies of documents sent by the Home Office or documents received by the Home Office.”

The Home Office treated that part of Mr Davis’ request which referred to him as a request for information about him, and they provided him with the information it held on him in relation to his previous requests on the basis that this latest request was a request for personal data under the Data Protection Act 1998 (“the DPA”). However, Mr Davis later went on to clarify that part of his request which referred to his company:

“… I am after any material that relates to my company John Connor Press Associates but NOT that information that I have already received ie. Any answers or correspondence that has already been sent to me. What I imagine might fall within the scope of this request is any internal communication about my company’s requests and any communication on the way they should be handled. However, this is not an exclusive list and as stated I would like to see all communication that mentions my company’s name but which has not been communicated to me.”

The reason for this request was Mr Davis’ belief that his requests for information were being handled differently from requests by other members of the public. He claimed to have evidence of that in respect of a particular request he had made. He was to say that it was “a clear abuse” of the Act for the Home Office to be anything other than “applicant blind” when it came to dealing with requests for information under the Act. It turned out that Mr Davis was right when he said that one of his requests for information had been handled differently from a similar request made by someone else, but the Home Office was to say that that had been because the requests had been handled by different departments and different judgments had been made.

[8]When responding to a request for information, the practice of the Home Office (and I imagine other government departments as well) is to provide copies of the actual documents which contain the information requested. The documents which would have had to be supplied to Mr Davis if the information he requested was to be supplied to him ran to about 1,250 pages and comprised many internal Home Office memos, e-mails and working documents created by officials within various sections of the Home Office. Some of the documents related to previous requests for information which had not been responded to by the time of the “meta-request” of 4 January 2007. Moreover, at the time Mr Davis’ request was referred to the Tribunal, the Home Office had realised that some of them may contain information exempt from disclosure under provisions of the Act other than section 36(2). For example, one of Mr Davis’ previous requests had been for information about prison security, and the Home Office may have been entitled to withhold that information under section 31(1)(f) on the basis that the disclosure of the information would be likely to prejudice the maintenance of security and good order in prisons. The internal documents within the Home Office which related to the handling of that request could have included information covered by that exemption. And many of the documents contained the personal data of third parties – for example, information about particular offenders or people who had made similar requests for that information – which could have been exempt from disclosure under section 40.

[9]The Home Office’s refusal. On 1 March 2007, the Home Office informed Mr Davis that the information he had requested would not be disclosed to him, since the information was exempt from disclosure as it would, or would be likely to, inhibit the free and frank provision of advice (section 36(2)(b)(i)) or the free and frank exchange of views for the purpose of deliberation (section 36(2)(b)(ii)), or would, or would be likely to, prejudice the effective conduct of public affairs (section 36(2)(c)). The Home Office Minister who had formed the view that disclosure would, or would be likely to, have one or more of these effects was Gerry Sutcliffe.

[10]Once Mr Sutcliffe had concluded that section 36(2) applied, it was necessary for the Home Office to consider the public interest test in section 2(2)(b), i.e. whether the public interest in maintaining the exemption outweighed the public interest in disclosing the information. The Home Office acknowledged that it was in the public interest for there to be transparency in the way requests for information under the Act were handled. That would increase the public’s confidence that the Home Office was dealing with requests promptly, fairly and lawfully, and the Home Office would be rendered more accountable if the public was able to scrutinise the reasoning which had been adopted. These factors favoured disclosure of the information requested by Mr Davis. However, there were three factors which the Home Office said militated against disclosure. The first was the need for government departments to be able to analyse requests for information robustly and comprehensively. That could only be done if officials were able to discuss requests candidly. That would be compromised if information about their discussions was released since their discussions would become more guarded and their decisions would be less well documented. That could adversely affect the quality of the decision-making process, and result in information being disclosed when it should have been withheld and information being withheld when it should have been disclosed. Secondly, there were enforcement mechanisms in place for people to invoke if they were dissatisfied with the way in which their requests had been handled. In addition to the right to request an internal review of the decision, there was the making of a complaint to the Commissioner and an appeal to the Tribunal. A request about how previous requests had been handled was an attempt to circumvent those mechanisms. Thirdly, the process of providing the information requested would be lengthy and therefore costly, diverting resources which would be better used answering other requests for information under the Act. Balancing these factors, the Home Office concluded that they favoured not disclosing the information to Mr Davis.

[11]The internal review. Mr Davis objected to the withholding of the information he had requested, and wrote to the Home Office “formally appeal[ing] under the terms of the … Act”. This was treated by the Home Office as a request for an independent internal review of the decision, and following that review the Home Office informed Mr Davis on 23 May 2007 that the decision would be maintained. The Home Office Minister who formed the view that disclosure would, or would be likely to, have one or more of the effects set out in section 36(2) was Vernon Coaker. The letter went on to repeat, in similar language to that contained in the letter of 1 March 2007, the considerations for and against disclosure, and confirmed that the balance was in favour of not disclosing the information to Mr Davis.

[12]The Commissioner’s decision. Mr Davis then complained to the Commissioner. He explained that his request for information about his previous requests was “to establish if any memos or record [had] been made within the Home Office to pick out my company’s requests for special attention”. The Commissioner concluded in favour of the Home Office that the exemption had been engaged. He thought that it had been reasonable for the Minister to conclude that the disclosure of the information would, or would be likely to, have one or more of the prejudicial effects set out in sections 36(2)(b) or 36(2)(c). However, he found against the Home Office in respect of the public interest test under sections 2(2)(b). His core reasoning is set out in para. 26 of his decision:

“The Commissioner rejects the argument that disclosure would result in a lack of frankness which would adversely affect the quality of [freedom of information] decision-making. He also rejects the argument that decisions would be less adequately recorded. The Information Tribunal in DfES v The Commissioner and The Evening Standard (EA/2006/0006) was unimpressed with the argument that the threat of disclosure of civil servants’ advice would cause them to be less candid when offering their opinions. It concluded that ‘we are entitled to expect of … [civil servants] the courage and independence that … [is] … the hallmark of our civil service’, since civil servants are ‘highly educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions’ and should not be easily discouraged from doing their job properly. The Commissioner does not believe that disclosure in this case would make officials responsible for providing advice and recording information less likely to perform their duties properly. Such public servants would be in breach of their professional duty as public servants should they deliberately withhold relevant information or fail to behave in a manner consistent with the Civil Service Code. It is a matter for the bodies concerned, including the Home Office, to ensure that their officials continue to perform their duties according to the required standards.”

He went on to say that Mr Davis’ request did not amount to an attempt to circumvent the enforcement mechanisms provided for by the Act, but “could have the positive effect of increasing [Mr Davis’] and public’s confidence in the robustness of the public authority’s internal procedures for handling information requests”.

[13]The appeal to the Tribunal. The Home Office appealed to the Tribunal. The principal ground of appeal was that when it came to applying the public interest test in section 2(2)(b) to Mr Davis’ “meta-request”, the Commissioner should have concluded that the considerations which favoured the non-disclosure of the information requested outweighed those considerations which favoured its disclosure.

[14]But there was another ground of appeal. The Commissioner had required the Home Office to disclose all the information which Mr Davis had requested, save that he had noted, when viewing the information to be disclosed, that it contained the personal details of some third parties. He had therefore suggested that the Home Office “should take account of the requirements of the [DPA] when disclosing” the information which had been requested. Presumably he was saying that information about personal data, the release of which would infringe the DPA, could be withheld. The Home Office thought that there was other information which the Commissioner had ordered it to disclose to Mr Davis which fell within other exemptions provided for by the Act. Accordingly, the Home Office’s other ground of appeal was that the Commissioner should not have ordered to be disclosed information which fell within those exemptions.

[15]This second ground of appeal raised two issues. The first was whether the Home Office could rely on exemptions other than those in section 36 at that stage in the proceedings. The second was whether, if it could, the information requested by Mr Davis could be withheld under any of those other exemptions. The Tribunal sensibly decided to deal with the principal ground of appeal and the first issue on the second ground of appeal as preliminary issues. If the Home Office succeeded on the first preliminary issue, the appeal would be allowed. If the Home Office failed on both preliminary issues, the appeal would be dismissed. If the Home Office failed on the first preliminary issue, but succeeded on the second, there would have to be a further hearing. With such a further hearing in mind, the Tribunal had previously ordered the Home Office to provide details of the other exemptions on which it would be relying. The Home Office gave those details in closed submissions, which showed that it was relying, in addition to section 36(2), on• section 31 (law enforcement)

• section 35 (formulation of government policy)

• section 40 (personal information)

• section 42 (legal professional privilege)

• section 43 (commercial interests). The first preliminary issue: “meta-data”

[16]The Tribunal’s decision. In paras. 41-60 of its decision, the Tribunal discussed the factors which favoured disclosure and non-disclosure of the “meta-data” requested by Mr Davis. In paras. 41-43, the Tribunal rehearsed the factors which the Home Office had always acknowledged favoured disclosure of the “meta-data” requested by Mr Davis – transparency, accountability and increased public confidence in the process – though the Tribunal noted the Home Office’s arguments that(a) it published its procedures for handling requests for information, and

(b) if the internal review confirmed that the procedures had been complied with, there was no public interest in providing the information requested. The Tribunal understandably rejected these points. Having good procedures in place does not automatically mean that they are followed, and there must be a mechanism, independent of the Home Office, to scrutinise whether the procedures are being complied with.

[17]In paras. 44-60 of its decision, the Tribunal went on to deal with the factors which the Home Office had always maintained favoured non-disclosure of the “meta-data” requested by Mr Davis – the impact which disclosure would have on the decision-making process, the circumvention of the recognised enforcement mechanisms, and the time and expense involved in dealing with “meta-requests”. As for the impact which disclosure would have on the decision-making process, the Tribunal was sceptical of the weight to be attached to this factor for the reasons given by the Commissioner in para. 26 of his decision (set out in [12] above). Moreover, the Tribunal doubted whether the Home Office’s concern about disclosure affecting the quality of decision-making could sensibly apply to “meta-requests”. The Home Office’s witness before the Tribunal, Jane Sigley, its Information Rights Manager, acknowledged that much of the information requested was not actually sensitive, and the Home Office itself had argued that much of it was anodyne in nature.

[18]As for the circumvention of the recognised enforcement mechanisms, the Tribunal found that this was a “weak” factor. It agreed with the arguments advanced on behalf of the Commissioner:• If it was being regarded as a factor of any significance, it would be coming close to creating a new category of exemption, not one which was provided for by the Act.

• The public needs to be confident that internal reviews are vigorously conducted and not self-serving. That can only be seen if members of the public have access to the raw material which shows how their original requests were handled.

• Relying just on an internal review or an appeal to the Commissioner would be unlikely to result in the disclosure of the information requested. The complainant would be likely to get at best a summary of how the request had been handled.

• An internal review by the Home Office and the adjudication of a complaint by the Commissioner would in the long run be much more labour-intensive and costly exercises than providing the information in the first place, and it would take much longer for complainants to know whether their original requests had been handled appropriately than the 20 working days provided for by section 10(1) for the “meta-data” to have been produced by the Home Office. Moreover, the Home Office would be relieved of the obligation to deal with requests for information and to bear the burden of the costs of providing it, and that burden would instead be passed to the Commissioner who would have to bear the costs of adjudicating on the complaint.

• There are limits to the procedure for making complaints to the Commissioner. His powers are limited to deciding whether the request was dealt with in accordance with the requirements of Part I of the Act. In other words, the process was intended to highlight where things had gone wrong, not to confirm that things were working properly. It was therefore not intended to address at least one of the important functions of the Act, namely to open up the process of government to public scrutiny.

• The Home Office argued that the Commissioner’s powers and duties under sections 47-49 – in particular, his duty under section 47 to promote good practice by public authorities and their compliance with the Act and codes of practice, and his power under section 48 to issue appropriate recommendations to public authorities who he thinks are not complying with the codes of practice – were a factor to be placed in the balance. However, these powers were not intended to replace the duty on public authorities to provide information which is requested of it.

[19]As for the time and expense involved in dealing with “meta-requests”, the evidence before the Tribunal was that for officials to have gone through all the documents which would need to be supplied to Mr Davis to provide him with the information he had requested and to ascertain whether any of the exemptions provided for by the Act applied to information in those documents would have been an expensive and time-consuming exercise. The exercise ultimately took an official experienced in handling requests for information under the Act about 45 hours to complete. It is true that section 12(1) provides that a public authority does not have to comply with a request for information where the cost of complying with the request is estimated to exceed “the appropriate limit” (which, for any government department, is £600.00 based on a rate of £25.00 an hour, i.e. 24 hours: see section 12(1), and regs. 3(2) and 4(4) of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (“the Regulations”)). But in estimating that cost, the time involved in considering whether particular information is covered by an exemption has been held by the Tribunal as not coming within the activities set out in reg. 4(3) of the Regulations, and therefore cannot be taken into account. That meant that it was not possible for the Home Office to refuse Mr Davis’ request under section 12(1) on the basis that the cost of complying with his request was estimated to exceed the appropriate limit.

[20]It could, I think, be said that the Home Office’s reliance on the time and expense in dealing with “meta-requests” as a factor to be weighed in the balance came close to extending section 12 and the Regulations impermissibly. After all, Parliament has identified the maximum number of hours which a public authority could be obliged to spend in complying with the request for information. Indeed, consideration was given in 2006 to amending the Regulations to permit the time involved in considering whether particular information is covered by an exemption to be taken into account in estimating whether the costs of complying with the request would exceed the appropriate limit, but nothing has yet been done to implement that suggestion. The Tribunal accepted that the fact that dealing with “meta-requests” might be time-consuming and therefore costly was a factor of only limited weight.

[21]Moreover, in its decision, the Tribunal set out a number of other factors which the Commissioner argued were significant. The evidence was that there had been less than 100 “meta-requests” to the Home Office in the preceding three years, and there was no evidence of a dramatic increase in them. Ms Sigley had said that “meta-requests” had not prevented her department from dealing with substantive requests, and that there was very little evidence that the Act was being used (presumably by members of the public) other than responsibly. The Tribunal went on to say that a request relating to as many as 48 previous requests was probably unusual, and that most “meta-requests” were likely to relate to far fewer original requests.

[22]There was one other factor which the Home Office said favoured non-disclosure of the “meta-data” requested by Mr Davis. That was that the information contained little or no material which the public interest required to be disclosed. The material consisted for the most part of “day to day” exchanges, and were completely innocuous or anodyne. The Commissioner’s response was that, although that may be so, the disclosure of the information would show whether the processes were working well or not. The Tribunal does not appear to have expressed a view about the weight to be attached to this consideration.

[23]Finally, there were three topics covered by Ms Sigley in her evidence which the Commissioner said amounted to additional factors relied upon by the Home Office as favouring non-disclosure of the “meta-data” requested by Mr Davis:(i) Ms Sigley made the point that “‘meta-requests’ … are an arguably permissible, but irresponsible, use of the Act”. However, she was to acknowledge that she was aware of only one case of the Act having been used irresponsibly, and one might say therefore that the solution was not to refuse to respond to “meta-requests” at all, but to consider them on a case-by-case basis. But more importantly, the Act deals with irresponsible requests in section 14(1), which permits public authorities to refuse requests for information which are vexatious. The concept of the irresponsible use of the Act was therefore said by the Commissioner to have no place outside section 14. The Tribunal agreed with that, and it gave this factor little weight since the Home Office had not thought it appropriate to invoke section 14 in relation to Mr Davis’ “meta-request”.

(ii) Ms Sigley said that the interests which “meta-requests” generally served are “private interests relating to an individual’s desire to know the details of how his or her requests have been handled”. The Tribunal did not express a view about the significance of that, but I would not have regarded it as a factor of any significance. The Act is “motive blind”, and the fact that a request serves a private interest only is irrelevant save when it could be said to impact on the application of section 14.

(iii) Ms Sigley said that “meta-requests” could be used as a “backdoor method” of obtaining information which had previously been withheld. To avoid that, the public authority would have no choice but to embark on the time-consuming task of trawling through the documents which had been generated by those requests which had been refused in order to ensure that information which had previously been withheld was not disclosed. However, the Tribunal concluded that only limited weight could be given to this factor for the reasons advanced by the Commissioner, namely that there had been no evidence that “meta-requests” had been used to give “backdoor” access to information which had previously been withheld, and certainly no suggestion that that had been behind Mr Davis’ “meta-request”. If that was regarded in a particular case to be the reason why a “meta-request” had been made, consideration could be given to invoking section 14.

[24]An additional factor. There was one factor which was referred to for the first time on the hearing of this appeal from the Tribunal’s decision. Mr Davis, it will be recalled, submitted his “meta-request” to find out whether he had been receiving “special attention”. One of the factors which it is said the Tribunal should have put in the balance was that, even though Mr Davis’ “meta-request” sought simply to find out whether his requests were being singled out for differential treatment, he had asked for information about how all 48 of his requests had been handled, and not just for information which related to whether his requests were being handled differently from others. The point being made by Mr James Eadie QC for the Home Office was that the breadth of the information being requested compared with the limited purpose for which it had been sought was a factor which favoured non-disclosure. I do not agree. This factor was not a factor which the Tribunal was asked to consider. But in any event, the information which was being requested would have been far less time-consuming to compile than if Mr Davis had asked for information which related to whether his requests were being handled differently from others. To research that request properly, the Home Office would have had to trawl through the requests it had received from other people under the Act to see whether(a) any of them were the same as or similar to Mr Davis’ 48 requests, and

(b) how they had been handled.

[25]The correct legal approach. It is apparent from this analysis of paras. 41-60 of the Tribunal’s decision that, in explaining the weight which the Tribunal gave to each of the various factors in favour of disclosure and non-disclosure of the “meta-data” requested by Mr Davis, the Tribunal was unimpressed with those which were said to favour non-disclosure. But as the Court of Appeal has recently held in The Office of Communications v The Information Commissioner

[2009] EWCA 90

(Civ), when considering a provision similar to section 2(2)(b) in the Environmental Information Regulations 2004, it is necessary to consider whether the aggregate public interest in non-disclosure outweighs the aggregate public interest in favour of disclosure. In other words, whatever may be said about individual components of the balancing exercise, it is nevertheless a broad judgment on where the balance lies which is required.

[26]Insufficient consideration of the competing factors. On this appeal, the Tribunal has been criticised for failing to give adequate or proper consideration to the weakness of the factors which favoured disclosure and the strength of those which favoured non-disclosure. That is not an easy argument to make on an appeal which permits points of law only. I deal first with the factors which favoured disclosure. The criticism of the Tribunal – when Mr Eadie refined the point orally – is that it placed too much weight on the need for the public to have confidence that requests for information were being dealt with properly. Such reassurance was not called for. The Tribunal’s starting point should have been that the public should assume that requests for information were being handled appropriately, and that there was nothing about the way Mr Davis’ original requests for information had been handled which had suggested either that they had been handled inappropriately or that the treatment of them had been discriminatory, or which would have added to or subtracted from the confidence which the public should be assumed to have in the process.

[27]I cannot go along with this criticism of the Tribunal at all. It does not appear as if this point was taken before the Tribunal if the Home Office’s skeleton argument in the Tribunal is anything to go by. Thus, it was not argued that the importance which the Commissioner had attached to the need for the public to know how requests are being handled had been misplaced. Indeed, the Home Office has, so far as I can tell, never disputed that public confidence in the process is, or may at the very least be, enhanced by members of the public being able to see for themselves how requests for information are handled in particular cases. And even if the Home Office thought that its handling of Mr Davis’ original requests could not be criticised and that he had not been the subject of discriminatory treatment, Mr Davis would not have been able to check that for himself without getting the “meta-data” which he subsequently requested. The fact that – albeit on just the one occasion – one of his requests for information had been handled differently from a similar request made by someone else called(a) for the disclosure of the information about how the request for that information had been handled so that he could see why there had been differential treatment, and

(b) for the disclosure of the information about how his requests for other information had been handled so that he could be satisfied that this had been simply an isolated incident of differential treatment.

[28]I acknowledge, of course, that if Mr Davis’ “meta-request” was looked at in isolation, it may be that disclosure of the information he requested served only his own interest in knowing how his previous requests had been handled, and that it would add very little to the public’s knowledge about how requests for information were generally handled. Whatever was disclosed would have been unlikely to promote public confidence in the integrity of the process as a whole. But you can say that about any individual case. What would throw light on the process – and therefore enhance or lessen the public’s confidence in its integrity – is the disclosure of information of how requests were handled in all of those cases in which requests for “meta-data” were made.

[29]I turn to the factors which favoured non-disclosure. First, the Tribunal is criticised for giving insufficient, if any, weight to the view of Ministers and experienced civil servants that the disclosure of “meta-data” would have an adverse impact on the ability of officials to handle requests for information robustly and comprehensively because of the pressure it would put on them to be less candid in the internal documents they write and less forthcoming in the reasons they give for refusing to provide information. I disagree. The Tribunal is not required to defer to the views of Ministers or civil servants. The Tribunal is a body with its own specialist expertise which it uses to test the factors favouring disclosure and non-disclosure. In any event, in para. 46 of its decision, the Tribunal dealt entirely adequately with this point by(a) adopting the reasoning in the case which had so influenced the Commissioner – The Department for Education and Skills v The Information Commissioner – and

(b) noting the concessions made by Ms Sigley and the arguments of the Home Office referred to in [17] above.

[30]Secondly, the Tribunal is criticised for giving no real consideration to the diversion of resources which answering “meta-requests” would entail. Again, I disagree. The truth is that the Tribunal did not accept that resources would be diverted in the way the Home Office feared. The reasons the Tribunal gave for that finding are summarised in [21] above.

[31]Thirdly, when it came to considering whether requests for “meta-data” amounted to a circumvention of the recognised enforcement mechanisms, the Tribunal adopted the arguments advanced on behalf of the Commissioner, without putting forward any independent reasoning of its own. It is therefore criticised for not giving any weight to(a) the mechanisms which enabled complainants to question the way their requests for information had been handled,

(b) the Commissioner’s own acknowledgement that these mechanisms constituted the appropriate forum for such investigations, and

(c) the Commissioner’s own regulatory powers. Indeed, in simply adopting the arguments advanced on the Commissioner’s behalf, the Tribunal is criticised for not heeding the words of Stanley Burnton J (as he then was) in Office of Government Commerce v The Information Commissioner

[2008] EWHC 774 (Admin)

at [84]:

“In general, a statement in a judicial decision that the tribunal prefers one party’s submissions to the other’s is uninformative, since it does not explain why the former’s submissions have been preferred …”

[32]I disagree with these criticisms. The Commissioner’s arguments which the Tribunal adopted are summarised in [18] above, and the reason why the Tribunal gave no weight to the three points highlighted in [31] above was because they did not think that they were worthy of any weight being attached to them. In relation to the Commissioner’s acknowledgment that the enforcement mechanisms constituted the appropriate forum for investigations about how requests for information had been handled, the Tribunal presumably thought – in my view rightly – that there was a difference between a request intended to find out how a previous request for information had been handled, and a complaint that it had not been handled properly. The fact of the matter is that the enforcement mechanisms provided for by the Act are in addition to the core right in section 1(1), and should not be used in substitution for it.

[33]The criticism of the Tribunal’s approach. A more substantial criticism of the Tribunal is that it adopted an approach to the evidence before it which had the effect of downgrading the factors which favoured non-disclosure and upgrading those factors which favoured disclosure. The approach which the Tribunal adopted is set out in paras. 63-64 of its decision:

“The [Home Office has] put to us a number of public interest factors in favour of maintaining the exemption which are largely at a highly generalised level. There is considerable jurisprudence of the … Tribunal which concludes that such factors should focus on the particular public interest which the exception is inherently designed to protect, i.e. that a narrow approach should be taken. If a wide approach is generally allowed then this would undermine the basis of [the Act] which, in effect, promotes disclosure of information unless specific exemptions apply. It is not an Act designed to encourage ways of avoiding openness otherwise it would defeat the object of having freedom of information legislation. Therefore where generalised public interests are put forward in favour of maintaining an exemption, which do not necessarily go to the very heart of the exemption being claimed, then we will not usually give as much weight to these public interests as we would to inherent public interests. This is largely the position in this case. In contrast we can give more weight to generalised public interests in favour of disclosure because inevitably the factors in favour of disclosure will be of this nature, inter alia, because there is an assumption or even presumption in favour of disclosure under [the Act].”

[34]I confess to having some difficulty with this part of the decision, but it may be that the language the Tribunal used here is less accessible than usual. I understand how the more generalised a factor is, the more difficult it may be to identify the particular harm or benefit which might accrue from disclosure or non-disclosure of a particular piece of information. Indeed, it may be that this was all that the Tribunal was saying, namely that the Home Office’s case operated at a high level of generality, and that it did not anchor the factors which it said favoured non-disclosure to the particular facts of the case and the nature of the exemption it was relying on. That I can understand, but that applies equally to the factors which the Home Office acknowledges favour disclosure – transparency, accountability and public confidence in the process – and I do not see why in principle a “generalised” factor should be of less significance than a more specific one. A factor which applies to very many requests for information can be just as significant as one which applies to only a few. Indeed, it may be more so.

[35]I understand, of course, why those factors which are said to favour disclosure will more often than not be more generalised than those factors which are said to favour non-disclosure, and if that is all that the Tribunal meant when it said that it was inevitable that the factors favouring disclosure would be more “generalised” than those favouring non-disclosure, I agree. But I have not been able to make the connection between that principle and the presumption (or assumption) in favour of disclosure in the Act (which is no more than that, if the factors in favour of disclosure and non-disclosure are equally balanced, the default setting is in favour of disclosure). And I do not think that I can agree that the factors relied upon by the Home Office which are said to favour non-disclosure do not go to what the Tribunal called “the very heart of the exemption”. For example, if government departments were inhibited from addressing requests for information robustly and comprehensively, that is a factor which is capable of adversely affecting the conduct of an important feature of government, namely the appropriate response to requests for information under the Act. But that does not, of course, mean that it is a factor to which much weight should be given if one proceeds from the premise – which the Commissioner and the Tribunal did – that civil servants could be expected to address requests for information robustly and comprehensively even if they know that their decisions could be subject to public scrutiny. Finally, this passage in the Tribunal’s decision refers to concepts which I struggle to understand, such as “inherent public interests”, or public interests “which the exemption is inherently designed to protect”.

[36]There is one other area where I fear the Tribunal’s approach can be criticised. The Tribunal thought that there was no evidence whether the Ministers had concluded that disclosure of the information requested by Mr Davis would have one or more of the inhibiting or prejudicial effects set out in sections 36(2)(b) and (c), or whether they had concluded only that disclosure of that information would be likely to have one or more of those effects. In these circumstances, the Tribunal followed what it had decided in McIntyre v The Information Commissioner (EA/2007/0068) – namely, that when it was not apparent which route the Minister had taken, the Tribunal should proceed on the assumption that what the Tribunal called “the lower threshold” should apply, i.e. that the disclosure of the information would only be likely to have one or more of the inhibiting or prejudicial effects set out in sections 36(2)(b) and (c).

[37]The original challenge to this approach was that it was wrong for the lower threshold to be the default setting, but in the course of argument, it became tolerably clear – to me at any rate – that the Tribunal had been wrong in thinking that the Ministers had not identified whether non-disclosure of the information would, or would merely be likely to, have one or more of these effects. The letters which summarised the opinions which the Ministers had formed were the letters of 1 March and 23 May 2007, and both these letters spoke in terms of “would” rather than “would be likely to”. Thus, the letter of 1 March said that “disclosure would prejudice discussions about the sensitivity of material which might be released to the public”, and the letter of 23 May said that “the release of the information would inhibit the free and frank exchange of views between Home Office officials” (emphasis supplied). The submissions to the Ministers show that the language of sections 36(2)(b) and (c) were brought to their attention.

[38]Conclusion on the first preliminary issue. The critical question, then, is how these criticisms of the Tribunal’s approach impact on its decision as a whole. Here it is important to go back to those paragraphs in the decision in which the Tribunal addressed the weight which should be attached to each of the factors which respectively favoured disclosure and non-disclosure. I do not overlook the need to look at the factors on either side of the scales in aggregate, but the aggregate is nevertheless the sum of its parts, and when you look at what the Tribunal thought of each of the factors which were said to favour non-disclosure, the Tribunal was not impressed by any of them. You can criticise the Tribunal for what it said about generalised factors and its belief that the lower threshold should apply, but in the light of the Tribunal’s view of the minimal weight which should be attached to the factors favouring non-disclosure, it is as clear as it could be that their overall judgment about where the balance lay would have been exactly the same. I therefore dismiss the Home Office’s appeal against the finding of the Tribunal on the first preliminary issue.

The second preliminary issue: exemptions other than section 36

[39]In paras. 72-75 of its decision, the Tribunal considered whether the Home Office should be permitted to rely on the exemptions identified in its closed submissions which it had not previously relied on. The Tribunal permitted the Home Office to rely on the exemption in section 40 relating to personal information so as to sanction the non-disclosure of some of the information requested by Mr Davis because otherwise any order made by the Tribunal “could breach the data protection rights of data subjects”. But the Tribunal ordered the Home Office to disclose the rest of the information despite the Home Office’s claim that this information was exempt from disclosure by virtue of provisions of the Act other than section 36.

[40]Shortly before this appeal was due to be heard, the Commissioner decided that the Home Office should have had the opportunity to argue before the Tribunal that it should not be required to disclose to Mr Davis information which fell within the other exemptions on which it wanted to rely. The Commissioner is therefore prepared to consent to the order which the Home Office would otherwise have sought – namely that the case be remitted to the Tribunal for the Tribunal to decide(a) whether the exemptions set out in the Home Office’s closed submissions apply to this information, and

(b) to the extent that they do, and that the relevant exemption is only a qualified one, whether the public interest in not disclosing the information outweighs the public interest in disclosing it. In the interests of completeness, I should add that the Commissioner also accepts that the public interest in favour of not disclosing the information relating to those of Mr Davis’ 48 requests which the Home Office had not responded to by the time Mr Davis submitted his complaint to the Commissioner outweighs the public interest in disclosing.

[41]However, the Commissioner made the first of these concessions on a basis with which the Home Office does not agree. The Home Office’s case is that, however late its reliance on any particular exemption is raised, and even if it had not relied on that exemption prior to the appeal to the Tribunal, it is nevertheless entitled as a matter of right to do so. It argues that neither the Tribunal – nor for that matter the Commissioner – has the power to order the disclosure of information which is exempt from disclosure under the Act. So before ordering the disclosure of any information, the Tribunal must be satisfied that none of the exemptions in the Act apply to it. Otherwise, information which might otherwise be exempt from disclosure under the substantive provisions of the Act could nevertheless be disclosed.

[42]The Commissioner, on the other hand, argues that the Tribunal has a complete discretion in the matter. Whether the public authority should be able to rely on an exemption in the Act to justify its non-disclosure of information when that exemption has not been relied on hitherto is an issue which the Tribunal has to decide on a case-by-case basis. Indeed, that is what the Tribunal previously decided in The Department for Business, Enterprise and Regulatory Reform v The Information Commissioner (EA/2007/0072) at para. 42, summarising the effect of a number of previous decisions of the Tribunal. The public authority should not be shut out from relying on any exemptions which it had not previously relied on simply because it had not specified that exemption when notifying the complainant of the refusal of their request as required by section 17(1)(b). But by the same token the public authority should not automatically be allowed to rely on an exemption not previously notified to the complainant. It depended on the circumstances of each case. The Tribunal added:

“… the Tribunal considers that it was not the intention of Parliament that public authorities should be able to claim late and/or new exemptions without reasonable justification otherwise there is a risk that a complaint or appeal process could become cumbersome, uncertain and could lead public authorities to take a cavalier attitude to their obligations under [sections] 10 and 17.”

[43]The Commissioner acknowledges, of course, the undesirability of information which would have been held to be exempt from disclosure being disclosed if the Tribunal decides not to exercise its discretion in favour of the public authority. But that could be catered for without the public authority having an unchallengeable right to rely on any exemption however late its reliance on the exemption was first raised. The undesirability of the particular information at issue being disclosed is a factor which can be taken into account by the Tribunal when deciding whether to permit the public authority to rely for the first time on an exemption applying to it.

[44]The Commissioner accepts that in this case the Tribunal should have permitted the Home Office to rely on the exemptions set out in the Home Office’s closed submissions in respect of the information to which those exemptions related. Accordingly, the Commissioner’s concession was made on the basis that the Tribunal erred, in the exercise of its discretion in this particular case, when it decided that the Home Office was not entitled to rely on any exemption which it had not previously relied upon, with the exception of certain personal information covered by section 40.

[45]Since the parties are now agreed on the order which the court should make on the second preliminary issue, the underlying issue which divides them is academic so far as this case is concerned. But it is an issue which is likely to crop up again, and both parties asked me to express my view on it so that they will know where they stand in the future. They reminded me of what Lord Slynn said in R v Secretary of State for the Home Department ex p. Salem

[1999] 1 AC 450

at p. 457A-B:

“The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”

[46]I have decided to decline that invitation. Any view I expressed would result in an obiter pronouncement on the correctness of a considerable line of authorities in the Tribunal which would not be capable of being appealed. It would be far better for the issue which happens to be academic in the present case to be decided on another appeal to the High Court from the Tribunal when the issue is a live one and can be the subject of an appeal.

Conclusion

[47]For these reasons, this appeal from the decision of the Tribunal must be allowed, but only to the extent of setting aside that part of the Tribunal’s order which required the Home Office to disclose to Mr Davis all of the information he had requested (with the exception of personal information covered by the exemption in section 40). Also to be excepted from the Tribunal’s order should be information to which the exemptions identified in the Home Office’s closed submissions relate, as well as information relating to those of Mr Davis’ requests which the Home Office had not responded to by the time Mr Davis submitted his complaint to the Commissioner. The case is therefore remitted to the Tribunal for it to decide(a) whether any of the information excepted from the Tribunal’s order is covered by any of the exemptions set out in the Home Office’s closed submissions, and

(b) to the extent that it is, and that the relevant exemption is only a qualified one, whether the public interest in not disclosing the information outweighs the public interest in disclosing it.

[48]I wish to spare the parties the trouble and expense of attending court when this judgment is handed down, and I leave it up to them to see if they can agree an appropriate order for the costs of the appeal. But if they cannot do so within 14 days of the handing down of this judgment, they should refer the issue to me, and I will decide the appropriate order to make without a hearing on the basis of any written representations which are made.