JUDGE CRAGG KCTRIBUNAL MEMBER ANNE CHAFERTRIBUNAL MEMBER SUZANNE COSGRAVE
Between
RABBI GABRIEL KANTER-WEBBERAppellantINFORMATION COMMISSIONERRespondentMINISTRY OF JUSTICERespondentDecision:The appeal is allowed.Substituted Decision Notice:The Ministry of Justice is to disclose paragraphs 14-20 of the withheld assessment within 35 days.REASONS
Introduction and the Decision Notice
[1]This appeal concerns a request made under the Freedom of Information Act 2000 (FOIA) for disclosure of a report prepared by Lord Brennan KC in his capacity as Independent Assessor under section 133 of the Criminal Justice Act 1988 (the 1988 Act), relating to compensation following the miscarriage of justice suffered by Timothy Evans.[2]The request was made by the Appellant on 29 January 2025 in the following terms: In 2003, the miscarriages of justice assessor Lord Brennan QC, recommended the payment of £250,000 compensation to the family of Timothy Evans, who was wrongfully executed in 1950 for a number of murders he did not commit. Excerpts from Lord Brennan's report are reproduced in the judgment ‘Westlake v Criminal Cases Review Commission’ [2004] EWHC 2779 (Admin). Please provide me with an electronic copy of Lord Brennan’s decision(s) and report(s) in this matter.[3]The request was refused by the Ministry of Justice (the MOJ), initially relying on section 41 FOIA (information provided in confidence). Following an internal review dated 17 April 2025, the refusal was upheld, albeit with emphasis placed upon section 40(2) FOIA (personal data) during the course of the reasoning.[4]The Appellant thereafter complained to the Information Commissioner. In the course of the Commissioner’s investigation, the MOJ provided submissions dated 13 November 2025, in which it maintained, among other matters, that the report contained “personal information in relation to the Independent Assessor” and that there existed “an expectation of privacy around his determinations”, such that disclosure would constitute “an invasion of privacy resulting from a disclosure of private and confidential information”.[5]The Commissioner issued a decision notice on 18 December 2025. In that notice, the Commissioner drew a distinction within the report, identifying paragraphs 1–13 as disclosable, but concluding that paragraphs 14–24 should remain withheld. The Commissioner rejected the reliance on section 41 FOIA, but upheld the application of section 40(2) FOIA.[6]The Commissioner first addressed the history of the matter. At paragraphs 11-16 of the decision notice, he noted that the Appellant had made an identical request in 2016. The MOJ had then relied upon section 40(2) FOIA, both in relation to the personal data of Timothy Evans' relatives and in relation to the personal data of Lord Brennan. The Commissioner had upheld that reliance in a decision notice dated 6 April 2017.[7]The Commissioner dealt with section 41 FOIA at paragraphs 17-26 of the decision notice. He accepted that the report had been obtained by the MOJ from Lord Brennan and therefore met the first limb of section 41. At paragraph 19 he stated he ‘is satisfied that the requested information is therefore information obtained from another person and this element of the exemption is met.’[8]The Commissioner then considered the requirements for an actionable breach of confidence. At paragraph 20 he identified the relevant questions as being whether the information had the necessary quality of confidence, whether it had been imparted in circumstances importing an obligation of confidence, and whether disclosure would constitute an unauthorised use to the detriment of the confider.[9]The Commissioner accepted, at paragraph 21, that the information possessed the necessary quality of confidence because it was neither trivial nor otherwise accessible to the public, save to the limited extent that certain excerpts had previously appeared in the judgment in Westlake v Criminal Cases Review Commission. He observed that section 41 FOIA could not apply to those excerpts since they were already public.[10]The Commissioner then turned to the MOJ's contention that the report had been imparted under an obligation of confidence. The MOJ had argued that there was an implicit expectation of confidence, that duties of confidence were owed both to Lord Brennan and to the personal representatives of Timothy Evans, and that neither compensation awards nor related documents were ordinarily placed in the public domain.[11]The Commissioner rejected that argument. At paragraph 24 he regarded it as ‘problematic as the MOJ is effectively placing a blanket rule on not disclosing such documents when it should be considering each on a case by case basis.’[12]The Commissioner concluded at paragraph 25 that he ‘…does not find that the circumstances were sufficient to impart an obligation of confidence as he is not satisfied that the MOJ has sufficiently demonstrated this.’ He continued that:- The MOJ has not provided evidence other than its statement that it does not place compensation awards in the public domain and this does not satisfy the Commissioner that the confider, Lord Brennan KC, imparted the report in circumstances which would give rise to an obligation of confidence.[13]Accordingly, at paragraph 26, the Commissioner concluded that he did not consider that the MOJ had demonstrated to his satisfaction that section 41 FOIA is engaged in relation to the withheld information.[14]The Commissioner addressed section 40(2) FOIA at paragraphs 27-40 of the decision notice. He did so notwithstanding the fact that the MOJ had not relied upon section 40(2) FOIA before him. At paragraph 28 he explained that, ‘as the guardian of personal data’, he considered himself obliged to examine the possible application of that exemption.[15]The Commissioner noted that the MOJ no longer sought to rely upon section 40(2) FOIA in respect of Timothy Evans' relatives because at least one was known to be deceased and there was uncertainty as to the status of the other. He nevertheless recorded the MOJ's earlier position, advanced during the 2016 proceedings, that the requested assessments constituted Lord Brennan's personal data because they ‘ were prepared by him, indicate his authorship and contain his opinions regarding the amount that should be awarded in compensation for the miscarriage of justice suffered by Timothy Evans.’[16]Having reviewed the report, the Commissioner drew a distinction between different parts of it. At paragraphs 33 and 34 he found that substantial portions consisted of factual narrative, reference to matters already in the public domain, quotations from other legal materials, and discussion of factors relevant to the assessment. He concluded that paragraphs 1-13 of the report did not comprise Lord Brennan's personal data.[17]The Commissioner then identified a narrower category of information which he considered did constitute personal data. At paragraph 35 he stated that paragraphs 14-24 of the report ‘where Lord Brennan KC outlines his decision as to the amount of compensation to be granted and states his opinions as to why, is considered by the Commissioner to be the personal data of Lord Brennan KC.’[18]Having found that paragraphs 14-24 constituted personal data, the Commissioner proceeded to consider the lawfulness of disclosure under Article 6(1)(f) UK GDPR. At paragraph 36 he recorded his conclusion that:- ... whilst the complainant has a legitimate interest in disclosure, and disclosure would be necessary to satisfy that interest, there is insufficient legitimate interest to outweigh the data subject's fundamental rights and freedoms.[19]The Commissioner expressly acknowledged the strength of the public interest arguments advanced by the Appellant. At paragraph 38 he accepted ‘the case is notorious and that there is a significant legitimate public interest in how compensation for such a miscarriage of justice was calculated.’ Nevertheless, the Commissioner concluded that disclosure would not be lawful. At paragraph 39 he held that the balancing exercise favoured Lord Brennan's interests because ‘the individual concerned would have a reasonable expectation that his opinions as to the determination of compensation in this case would not be disclosed to the public.’[20]The Commissioner therefore found that disclosure would not satisfy Article 6(1)(f). Having reached that conclusion, he stated at paragraph 40 that he had not gone on separately to consider the requirements of fairness or transparency under Article 5(1)(a) UK GDPR.
The appeal and responses
[21]The Appellant appealed to the Tribunal in January 2026, confining his challenge to the Commissioner’s conclusion under section 40(2) FOIA. The substance of the Appellant’s case is that the report, including the withheld paragraphs, represents the exercise of a public, statutory function and cannot properly be characterised as personal data. In particular, the Appellant submits that there is no principled distinction between paragraphs 1–13, which have been disclosed, and paragraphs 14–24, which have been withheld (although of course he has not seen the contents of paragraphs 14-24). He points to numerous evaluative statements by Lord Brennan in the paragraphs already disclosed—including findings that the case constituted a ‘notorious miscarriage of justice’ and that relevant confessions were the product of ‘police oppression’—as demonstrating that the report throughout contains evaluative reasoning of the same kind.[22]The Appellant further submits that Lord Brennan’s role as Independent Assessor is properly analogous to that of a judicial decision-maker, and that his reasoning should accordingly be treated as part of a public determination rather than as information relating to him personally. If the information is personal data, in relation to the balancing exercise under Article 6(1)(f) UK GDPR, the Appellant contends that the legitimate interest in transparency is strong, whereas no evidence has been identified of any actual harm to Lord Brennan. He also criticises the suggestion that Lord Brennan would be unlikely to consent to disclosure as speculative and unsupported.[23]The Commissioner’s response, dated 27 January 2026, maintains the position set out in the decision notice. In essence, the Commissioner continues to contend that the withheld material constitutes Lord Brennan’s personal data because it reflects his views and conclusions as an individual decision-maker. While accepting that there is a legitimate interest in transparency, the Commissioner relies upon what is said to be a reasonable expectation that such assessments would not be published, together with the absence of any established practice of disclosure and the potential intrusion into personal privacy, in concluding that disclosure would be unlawful.[24]The MOJ's position is that the withheld material comprises paragraphs 14–24 of Lord Brennan's Compensation Assessment, being the part of the Assessment in which he expressed his views on the appropriate awards for non-pecuniary loss, pecuniary loss and legal costs. It accepts that paragraphs 1–13 were correctly disclosed in accordance with the decision notice but contends that the remainder should remain withheld.[25]The MOJ submits that the Commissioner was wrong to conclude that section 41 FOIA is not engaged. It accepts that the first limb of section 41 is satisfied because the Compensation Assessment was provided to the MOJ by Lord Brennan in his capacity as Independent Assessor. The dispute concerns whether disclosure would constitute an actionable breach of confidence.[26]The MOJ relies upon what it describes as the longstanding practice of both the Ministry of Justice and previously the Home Office that compensation assessments under section 133 of the 1988 Act are not published. It points to the observation of the House of Lords in O'Brien v Independent Assessor[2004] EWCA Civ1035 that such assessments are made relatively infrequently and ‘are not published’. The MOJ submits that this practice gives rise to a mutual understanding between the department, the assessor and claimants that the information is to remain confidential.[27]The MOJ further submits that the Compensation Assessment concerns inherently private matters, namely the amount of compensation to be paid to Mr Evans' personal representatives and the reasoning underlying that award. It contends that information regarding the financial affairs and compensation received by Mrs Ashby and Mrs Westlake was private information in respect of which there was a reasonable expectation of privacy.[28]The MOJ argues that publication through FOIA would disclose to the world at large information concerning the financial position of those recipients and that such disclosure would amount to an intrusion into their privacy and a breach of their Article 8 rights. It submits that, although both recipients are now thought to be deceased, duties of confidence are capable of surviving death and could be enforced by their personal representatives.[29]The MOJ also contends that an obligation of confidence was owed to Lord Brennan himself. It argues that, as Independent Assessor, he would have had an expectation that his assessments would not be made public and that the report was communicated to the department on that basis. It submits that disclosure would involve the unauthorised use of information imparted in confidence.[30]In relation to the public interest defence, the MOJ accepts that there is a public interest in transparency regarding miscarriages of justice and their compensation. However, it submits that the public interest in disclosure is limited because: there is no suggestion of wrongdoing, illegality or misconduct in the assessment process; the miscarriage of justice suffered by Timothy Evans is already well known and extensively documented; it is already publicly known that compensation was awarded; and the legal principles governing the assessment process were themselves in the public domain.[31]Against that, the MOJ relies upon what it characterises as a strong public interest in preserving confidences, protecting private financial information and maintaining the confidentiality of the assessment process. It therefore submits that disclosure would constitute an actionable breach of confidence and that section 41 is engaged.[32]The MOJ supports the Commissioner's conclusion that paragraphs 14–24 constitute Lord Brennan's personal data and are exempt under section 40(2) FOIA. It notes that, although information relating to Mrs Ashby and Mrs Westlake is no longer personal data because both are deceased, the Commissioner correctly focused upon the position of Lord Brennan.[33]The MOJ submits that the critical feature of paragraphs 14–24 is that they contain Lord Brennan's personal assessment of the submissions made to him and his conclusions regarding the amount that ought to be awarded.[34]Relying upon Ashley v HMRC, Nowak v Data Protection Commissioner and European Data Protection Supervisor v Single Resolution Board, the MOJ submits that information relates to an individual where it is linked to that individual by reason of its content, purpose or effect. In its submission, opinions and assessments are inherently linked to their author because they are expressions of that person's thinking. It submits that the passages are not merely records of an objective outcome but instead embody his evaluative approach and analysis and are therefore information relating to him.[35]Turning to Article 6 UK GDPR, the MOJ accepts that the Appellant is pursuing a legitimate interest in seeking disclosure and does not dispute that there is a degree of public interest in transparency regarding compensation for miscarriages of justice.[36]Nevertheless, the MOJ argues that the balancing exercise favours non-disclosure. It advances three principal reasons.[37]First, Lord Brennan has not consented to disclosure and, in the MOJ's submission, is unlikely to do so. The department relies upon the historical practice that compensation assessments were not made public during Lord Brennan's tenure and have not generally been made public since.[38]Secondly, the MOJ submits that Lord Brennan would not reasonably have expected that his assessment would enter the public domain. It relies again upon the observation in O'Brien that such assessments are not published and upon the absence of any statutory requirement for publication.[39]Thirdly, the MOJ submits that the public interest relied upon by the Appellant carries limited weight because the underlying miscarriage of justice, the fact of compensation, and the governing legal principles are already known. In its submission, the additional value of disclosure of the detailed reasoning is insufficient to outweigh Lord Brennan's interests in maintaining the privacy of his assessment. For those reasons the MOJ submits both that paragraphs 14–24 are Lord Brennan's personal data; and disclosure would contravene Article 5(1)(a) UK GDPR because there is no lawful basis for disclosure under Article 6.[40]The Appellant filed a reply dated 4 February 2026 in response to both the Commissioner's response and the MOJ's response. The Appellant's principal submission was that the respondents' contention that paragraphs 14–24 constituted Lord Brennan's personal data was difficult to reconcile with the disclosure of paragraphs 1–13. He repeated that the disclosed part of the Assessment already contained numerous expressions of Lord Brennan's opinion and evaluative judgment, including findings that:-(a) the case was ‘one of the most notorious miscarriages of justice in English legal history’;(b) aspects of the case had a ‘bizarre history’;(c) Timothy Evans' confessions resulted from ‘police oppression’;(d) investigative failures concerning Christie were ‘very surprising’;(e) disclosure failures by the police were ‘very disturbing’; and(f) Timothy Evans must have felt ‘completely abandoned’ by society.[41]The Appellant argued that all of these statements were equally ‘the expression of Lord Brennan's thinking’, yet the Commissioner had not regarded them as personal data. In his submission, no satisfactory distinction had been drawn between those passages and the withheld portions of the report.[42]The Appellant further contended that, even if the withheld information were personal data, disclosure would be lawful under Article 6(1)(f) UK GDPR. He noted that the MOJ expressly accepted the existence of a legitimate interest in disclosure, but had not identified any concrete interests, rights or freedoms of Lord Brennan that would outweigh that interest. He characterised the reliance on Lord Brennan's rights as resting largely on assertion rather than evidence.[43]The Appellant submitted that it was difficult to identify any real harm that disclosure could cause to Lord Brennan. He emphasised that Lord Brennan had been acting as a statutory office-holder exercising a public function rather than expressing private views on matters concerning his personal life. The Appellant drew an analogy with judges, whose judgments are routinely published notwithstanding that they contain the judge's opinions and reasoning. In his submission, the fact that assessors' reports were not routinely published did not establish that disclosure under FOIA would be unlawful.[44]The Appellant also criticised the MOJ's assertion that Lord Brennan would be ‘unlikely’ to consent to disclosure. He observed that Lord Brennan remained alive and that the MOJ had made no attempt to contact him. He submitted that the MOJ should not be permitted to rely upon speculation where it could readily have sought Lord Brennan's actual views.[45]Turning to section 41 FOIA, the Appellant submitted that the MOJ's case was unclear as to whether the alleged duty of confidence was said to be owed to Lord Brennan or to the relatives of Timothy Evans.[46]In relation to Lord Brennan, the Appellant argued that there could be no obligation of confidence of the kind contended for between a public office-holder and the government department to which he was required by statute to report. He contended that Lord Brennan was exercising a public function on behalf of the State and that disclosure of the report could not give rise to any actionable detriment to him.[47]As regards the relatives of Mr Evans, the Appellant argued that the allegedly confidential information identified by the MOJ—the amount of compensation paid—had not been imparted by them to Lord Brennan. Rather, it was information generated by Lord Brennan himself in the course of the assessment. The Appellant therefore disputed the proposition that the relatives could possess an actionable confidence in the assessment figure itself.[48]The Appellant further argued that, although the law may in some circumstances permit duties of confidence to survive death, the MOJ had failed to identify any detriment capable of arising from disclosure in this case. He pointed out that it was already a matter of public record that the relatives had sought and obtained compensation and that this information had entered the public domain through litigation brought by the relatives themselves. In those circumstances, he submitted that it was fanciful to suggest that disclosure of the precise amount awarded could found a successful action for breach of confidence.[49]The Appellant also placed reliance on the fact that the disclosed part of the Compensation Assessment already revealed that interim payments totalling £450,000 had been made and that the applicants' representatives had sought compensation in the sum of £850,000. He argued that, if disclosure of those figures did not engage section 41, it was difficult to see how disclosure of the remaining figures could do so.
The Statutory Framework
[50]Section 1(1) FOIA confers a general right of access to information held by public authorities:- 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.”[51]That right is subject to a series of exemptions set out in Part II of the Act. Where an exemption applies, the information need not be disclosed.[52]Section 40(2) FOIA operates in conjunction with the data protection legislation. Although section 40 is framed as an exemption, its effect is to ensure that disclosure under FOIA does not place a public authority in breach of its obligations under data protection law.[53]Section 40(2) FOIA provides, so far as material:
“Any information to which a request for information relates is also exempt information if—(a) it constitutes personal data … and(b) the first, second or third condition is satisfied.”
[54]The relevant condition in this case is that set out in section 40(3A), namely that disclosure would contravene any of the data protection principles.[55]Section 40(2) FOIA is an absolute exemption, in the sense that if disclosure would breach the data protection legislation, there is no separate public interest balancing under FOIA itself. The relevant balancing exercise is instead conducted within the framework of the UK General Data Protection Regulation (UK GDPR).[56]The applicable data protection regime is contained in the UK GDPR and the Data Protection Act 2018 (DPA 2018). Article 4(1) UK GDPR defines ‘personal data’ as ‘any information relating to an identified or identifiable natural person (‘data subject’)’. An individual is ‘identifiable’ if they can be identified, directly or indirectly, in particular by reference to a name or other identifier. The phrase ‘relating to’ is of importance. It has been interpreted broadly, but not without limit.[57]In determining whether information ‘relates to’ an individual, the Tribunal considers the indicia identified in the jurisprudence, namely the content of the information, its purpose, and its effect on the individual. This approach reflects the analysis adopted in European and domestic authorities, including Nowak v Data Protection Commissioner (Case C-434/16) and subsequent cases, and has been consistently applied in FOIA appeals.[58]It is also established that opinions or assessments may constitute personal data, particularly where they are linked to an individual. However, the mere fact that information represents the opinion of an identifiable person does not necessarily mean that it relates to that person, as opposed to the subject-matter of the opinion.[59]Article 5(1) UK GDPR sets out the data protection principles. The most relevant for present purposes is Article 5(1)(a), which provides that personal data shall be ‘processed lawfully, fairly and in a transparent manner in relation to the data subject.’ Disclosure under FOIA constitutes ‘processing’ for the purposes of the UK GDPR. The question is therefore whether disclosure would be lawful, and (in practice) this turns on whether one of the conditions in Article 6 is satisfied.[60]The principal lawful basis relied upon in FOIA cases is Article 6(1)(f) UK GDPR, which provides that processing is lawful where:- …processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject…[61]The application of Article 6(1)(f) involves a three-stage analysis. There must be a legitimate interest in disclosure (which may be public or private). Disclosure must be necessary to achieve that interest. For processing to be lawful, the legitimate interest must not be overridden by the rights and freedoms of the data subject. This structured approach has been endorsed in South Lanarkshire Council v Scottish Information Commissioner [2013] UKSC 55, where the Supreme Court emphasised the need to identify a real and present legitimate interest and to balance it against the data subject’s rights. A central factor in the balancing exercise is the reasonable expectations of the data subject at the time the information was obtained or created.[62]Where information arises in a public or professional context, particularly in the exercise of statutory functions, the weight to be attached to privacy interests may be materially reduced. The case-law recognises that individuals acting in an official capacity may properly expect a greater degree of scrutiny than private individuals. Conversely, where information touches on private life or sensitive matters, greater protection will ordinarily be afforded.[63]Section 41(1) FOIA provides:- Information is exempt information if—(a) it was obtained by the public authority from any other person (including another public authority), and(b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.[64]The exemption is only engaged where disclosure would constitute an actionable breach of confidence. Accordingly, the Tribunal must determine whether a claim for breach of confidence would be available and, if so, whether such a claim would be likely to succeed.[65]The first limb of section 41 FOIA requires that the information was obtained by the public authority from another person. In the present case there is no substantial dispute that the Compensation Assessment was sent by Lord Brennan to the Ministry in his capacity as Independent Assessor and therefore satisfies section 41(1)(a) FOIA.[66]The leading authority is Coco v AN Clark (Engineers) Ltd [1969] RPC 41 whch identifies three requirements:-(i) the information itself must have the necessary quality of confidence;(ii) it must have been imparted in circumstances importing an obligation of confidence; and(iii) there must be an unauthorised use of that information.[67]Information will possess the necessary quality of confidence if it is neither trivial nor generally accessible to the public. The question is not whether part of the subject matter is public knowledge, but whether the particular information sought to be disclosed is itself sufficiently secret or inaccessible to attract the protection of equity.[68]Information may nevertheless lose the necessary quality of confidence where it has entered the public domain or where substantially the same information is already publicly available.[69]The existence of an obligation of confidence is assessed objectively. The question is whether a reasonable person standing in the shoes of the recipient would have appreciated that the information was being communicated in confidence. Such an obligation may arise expressly, through contractual or other express terms, or impliedly from the circumstances in which the information was communicated. Relevant factors may include the nature of the relationship between the parties; the purpose for which the information was supplied; established practices or understandings; statutory functions being performed; and whether the information concerns private affairs or inherently confidential matters.[70]The mere fact that information is sensitive, or that a public authority does not ordinarily publish it, does not automatically establish an equitable obligation of confidence.[71]Equally, there is no general rule that information generated in the course of public functions cannot attract confidentiality. The question is always one of fact and context.[72]Disclosure under FOIA is disclosure to the world at large. Accordingly, if information is subject to an enforceable duty of confidence, disclosure pursuant to FOIA will generally constitute an unauthorised use unless the confider has consented or some other defence is available.[73]However, section 41 FOIA requires an actionable breach. In determining actionability, the Tribunal must consider whether a person entitled to enforce the confidence would have a realistic prospect of succeeding in proceedings for breach of confidence.[74]Even where the elements of a breach of confidence are established, disclosure will not be actionable if a defence would be available. The most important such defence is that disclosure is justified in the public interest. The balancing exercise under the law of confidence differs from the public interest test applicable to qualified exemptions under FOIA. There is no assumption that disclosure should occur merely because some public interest exists. Rather, the authorities recognise a strong public interest in preserving confidences, which may be displaced only by a sufficiently weighty countervailing public interest.[75]The Tribunal must therefore determine:-(a) whether the withheld information was obtained from another person;(b) whether it possessed the necessary quality of confidence;(c) whether it was imparted in circumstances importing an obligation of confidence;(d) whether disclosure would amount to an unauthorised and actionable breach of confidence; and(e) if so, whether a public interest defence would nevertheless defeat any claim for breach of confidence. Discussion and decision Scope of the request and the withheld material
Discussion and decision
[76]Before considering the claimed exemptions, it is necessary to define the information falling within the scope of the request. The Appellant sought Lord Brennan's ‘decision(s) and report(s)’ concerning the recommendation of compensation payable following the miscarriage of justice suffered by Timothy Evans. Paragraphs 21–24 of the Assessment do not concern the assessment of compensation itself but Lord Brennan's determination of the applicants' legal costs. Those costs were ancillary to the compensation award and did not form part of the compensation recommended for the miscarriage of justice. Construing the request objectively and in its proper context, we are satisfied that it was directed to the assessment of compensation payable rather than the separate issue of legal costs recoverable by them. We therefore conclude that paragraphs 21–24 fall outside the scope of the request and it is unnecessary to determine whether any exemption applies to that material.
Section 41 FOIA
[77]There is no dispute that the first requirement of section 41(1) FOIA is satisfied. The Compensation Assessment was provided by Lord Brennan to the department following his appointment as Independent Assessor under section 133(4) of the 1988 Act. The information was therefore obtained by the public authority from another person.[78]The issue is whether disclosure would constitute an actionable breach of confidence for the purposes of section 41(1)(b).[79]The Tribunal accepts, as did the Commissioner, that the withheld information is not trivial and is not generally available to the public. Subject to the limited extracts reproduced in Westlake v Criminal Cases Review Commission [2004] EWHC 2779 (Admin), the information retains the necessary quality of confidence. That, however, is only the first step in the analysis.[80]The principal difficulty with the MOJ's case arises in relation to the second limb of the Coco test, namely whether the information was imparted in circumstances importing an obligation of confidence.[81]The MOJ places considerable reliance upon the fact that compensation assessments have not traditionally been published. It also relies upon the observation of the House of Lords in O'Brien v Independent Assessor that such assessments are made relatively infrequently and ‘are not published’. The Tribunal accepts that this demonstrates an historical practice of non-publication. However, a practice of non-publication is not the same thing as a legally enforceable obligation of confidence.[82]The evidence before the Tribunal does not disclose any express confidentiality undertaking given either by the department or by Lord Brennan. Nor is there evidence that claimants under the statutory compensation scheme were informed that the assessor's reasoning would remain confidential indefinitely.[83]The Tribunal agrees with the Commissioner that the MOJ's submissions tend to proceed from the premise that compensation assessments are confidential because they have not previously been disclosed. That proposition risks elevating administrative practice into a rule of law. The fact that a category of documents is not routinely published does not, without more, establish that each document within that category is communicated in circumstances importing an equitable obligation of confidence.[84]The Tribunal considers it significant that Lord Brennan was not acting in a private advisory capacity. He was exercising a statutory function entrusted to him by Parliament. The Assessment was not created for his own purposes or those of a private client. Rather, it was produced as part of a statutory process concerned with determining the amount of compensation to be paid by the State following a miscarriage of justice.[85]We do not accept the Appellant's submission that information generated in the exercise of a public function can never attract confidence. Much will depend upon the circumstances. Nevertheless, the public and statutory context in which the Assessment was produced is an important factor when considering whether an obligation of confidence arose. It materially weakens the proposition that a reasonable recipient would understand the report to have been communicated upon terms restricting any future disclosure.[86]The MOJ also appears to rely upon duties of confidence said to be owed to the relatives, or their personal representatives. We accept that financial matters are capable of attracting a reasonable expectation of privacy and that duties of confidence may, in some circumstances, survive the death of the original confider. However, the difficulty identified by the Appellant remains. The information now in dispute is not information imparted by the relatives. The withheld passages comprise Lord Brennan's assessment of compensation and his reasoning for arriving at that assessment. Those conclusions were generated by Lord Brennan in the performance of his statutory role.[87]Further, aspects of the financial position are already disclosed in the material released pursuant to the decision notice. The disclosed report reveals, for example, that interim payments totalling £450,000 had already been made and records a submission seeking compensation in the sum of £850,000. That considerably weakens the proposition that disclosure of the remaining reasoning would constitute an actionable invasion of privacy.[88]Even if we were wrong about the existence of an obligation of confidence, we would not be satisfied that the MOJ has established that a claim for breach of confidence would realistically succeed.[89]So far as Lord Brennan is concerned, no evidence has been placed before the Tribunal that he regarded the Assessment as confidential, that he has objected to disclosure, or that he would suffer any identifiable detriment through publication. The MOJ's submission that he would be unlikely to consent to disclosure is speculative. It is notable that no attempt appears to have been made to ascertain his position.[90]Nor are we persuaded that disclosure of the reasoning of a statutory decision-maker, more than twenty years after the event, would constitute the type of misuse of private information which equity would restrain. The information concerns the exercise of a public function rather than any aspect of Lord Brennan's private life.[91]Finally, had the elements of a breach of confidence otherwise been established, we consider that a substantial public interest would exist in disclosure.[92]This case concerns one of the most significant miscarriages of justice in modern British legal history. There is a legitimate and weighty public interest in understanding not merely that compensation was awarded, but how the statutory assessor arrived at the amount awarded. Disclosure would contribute to transparency, accountability and public understanding of the operation of the compensation scheme under section 133 of the 1988 Act.[93]Against that stands a comparatively limited confidentiality interest. The principal individuals affected by the compensation decision are deceased. No wrongdoing, commercial sensitivity, national security concern or comparable factor has been identified which would justify maintaining secrecy.[94]Drawing these matters together, the Tribunal concludes that the MOJ has failed to establish that the withheld information was imparted in circumstances importing a legally enforceable obligation of confidence. Nor, in any event, has it established that disclosure would constitute an actionable breach of confidence. If a duty of confidence did exist, we consider that there would be a sufficiently strong public interest defence to disclosure. Section 40(2) FOIA: Personal Data 95. Is the withheld information personal data?
Section 40(2) FOIA: Personal Data
[95]The starting point is whether the withheld information, namely the conclusions and reasoning contained in paragraphs 14–20 of the Compensation Assessment, constitutes ‘personal data’ within the meaning of Article 4(1) UK GDPR.[96]Personal data is defined as information relating to an identified or identifiable natural person. It is common ground that Lord Brennan is identifiable. The issue is whether the withheld information properly ‘relates to’ him.[97]The Tribunal accepts that the concept of personal data is broad and that opinions and assessments may constitute personal data. The authorities relied upon by the Commissioner and the MOJ make clear that subjective views are capable of constituting personal data where they relate to an identifiable individual.[98]Equally, however, those authorities do not establish that every opinion expressed by an identifiable person necessarily relates to that person. The question remains whether, having regard to the content, purpose and effect of the information, the information is linked to the individual himself or to the subject matter on which he was required to express a view.[99]In the Tribunal's view, the withheld information is properly characterised as the reasoning and conclusions of a statutory decision-maker directed to the assessment of compensation payable by the State. This was produced solely in the exercise of a public statutory function and concerned entirely with the quantification of compensation following a miscarriage of justice.[100]In our view, this characterisation is supported by the evidence concerning Lord Brennan's appointment. By letter dated 27 July 2001, the Secretary of State appointed Lord Brennan as Independent Assessor pursuant to the statutory scheme under section 133 of the 1988 Act. His Terms of Reference required him to perform an independent assessment of compensation payable following miscarriages of justice and to apply principles analogous to those applied by courts in assessing damages.[101]The content of the withheld information is directed entirely to the claim in this case. It concerns Lord Brennan's evaluation of the losses said to have been suffered and the appropriate level of compensation. It contains no information relating to his private life, personal affairs, financial position, health, relationships or other biographical matters. The effect of disclosure would be to inform public understanding of the compensation award, rather than to reveal personal information about Lord Brennan as an individual.[102]The Tribunal therefore considers that the information is linked, in substance, to the statutory assessment itself rather than to Lord Brennan personally.[103]The Tribunal also attaches weight to the structure of the Commissioner's own analysis. The Commissioner accepted that paragraphs 1–13 of the Assessment did not constitute Lord Brennan's personal data. Those disclosed paragraphs contain numerous evaluative judgments and expressions of opinion as explained above.[104]The Tribunal has been unable to identify any coherent distinction in principle between those evaluative passages and the material contained in paragraphs 14–20. The earlier paragraphs explain why compensation should be awarded and the factors relevant to assessment. The withheld paragraphs explain how the amount of compensation was calculated. Both involve the expression of professional judgment in the discharge of the same statutory function.[105]Drawing these matters together, the Tribunal concludes that the withheld information relates to the exercise of a public statutory function rather than to Lord Brennan as an individual. Its content, purpose and effect are directed to the assessment of compensation in the Evans case. Properly analysed, it does not constitute Lord Brennan's personal data. Accordingly, the Tribunal finds that the withheld information is not personal data within the meaning of Article 4(1) UK GDPR and that section 40(2) FOIA is not engaged.[106]If, contrary to the Tribunal's primary conclusion, the withheld information does constitute Lord Brennan's personal data, the Tribunal would nevertheless conclude that disclosure is lawful under Article 6(1)(f) UK GDPR. The Tribunal identifies a strong and legitimate interest in disclosure. That interest lies in transparency and accountability in the operation of the statutory compensation scheme established by section 133 of the 1988 Act; public understanding of the reasoning by which compensation awards following miscarriages of justice are determined; and scrutiny of the exercise of an important public function. The Commissioner accepted that there is a significant legitimate public interest in understanding how compensation for such a miscarriage of justice was calculated.[107]The Tribunal is satisfied that disclosure of the withheld material is necessary to achieve those legitimate interests. The disputed paragraphs contain the operative reasoning which explains how the compensation figure was reached. Without disclosure of that reasoning, meaningful scrutiny of the determination is substantially impeded.[108]Turning to the balancing exercise, the Tribunal does not consider that any interests or fundamental rights and freedoms of Lord Brennan outweigh the legitimate interest in disclosure. Several considerations are material.[109]First, Lord Brennan was acting solely in a public statutory capacity. The information arises entirely out of that role. This substantially reduces the weight to be attached to any privacy interest. Secondly, the information consists of professional reasoning and evaluative judgment rather than intrinsically private material. It reveals nothing about Lord Brennan's personal life or private affairs. Thirdly, the Assessment was produced more than twenty years before the request. Any privacy interest in professional reasoning generated during the exercise of a public office is correspondingly attenuated by the passage of time. Fourthly, no evidence from Lord Brennan has been produced that he would not consent to disclosure. The MOJ's contention that he would be unlikely to consent is therefore speculative.[110]Fifthly, the disclosure of paragraphs 1–13 materially weakens any suggestion that publication of the remaining reasoning would involve a significant intrusion into Lord Brennan's privacy. The Assessment has already been disclosed in substantial part and already contains evaluative opinions expressed by him.[111]Finally, no concrete harm arising from disclosure has been identified. The possibility that the reasoning of a public decision-maker may be subjected to public scrutiny does not amount to a significant interference with personal rights.[112]The Tribunal therefore concludes that any interference with Lord Brennan's interests would be limited and proportionate, and is outweighed by the substantial legitimate interest in disclosure. Accordingly, even if the withheld information were personal data, disclosure would satisfy Article 6(1)(f) UK GDPR and would not contravene the first data protection principle. On that alternative basis also, section 40(2) would not apply.
Decision
[113]The appeal is allowed. The Commissioner’s decision notice is set aside insofar as it upholds the application of section 40(2).[114]The Tribunal substitutes a decision that the Ministry of Justice shall disclose paragraphs 14–20 of the Compensation Assessment within 35 working days.