Department for Work and Pensions v Information Commissioner & Ors (Information rights : Freedom of Information - exceptions) [2015] UKUT 535 (AAC)
[51]… a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same notwithstanding the error; sometimes, there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes, the decision is the only one which could rationally have been reached. In all such cases, the error should not (save, perhaps, in wholly exceptional circumstances) justify the decision being quashed.18. Applying that approach here, I consider that the deficiencies in paragraph 62 do render the tribunal’s decisions in error of law. It is certainly possible that the tribunal would have reached the same conclusion anyway. It had some pertinent observations about the choice of Ms Cox as a witness and about the limitations on and value of her evidence. Paragraph 62 is, though, an important part of the tribunal’s reasoning. The tribunal came to the conclusion that the Department had not made out its case. It was entitled to take the absence of evidence into account if that evidence ought to have been available to support the case if it were valid. It is that part of the tribunal’s analysis that is flawed. It imposed an unrealistic expectation of what ought to be available and compounded its error by equating the documents before it with another document of a different nature that it had not seen. It may be that the tribunal would have rejected the case anyway, but it is also possible that a more realistic attitude of what was possible might have forced the tribunal to rely more on probability and human nature as a guide to assessment Ms Cox’s evidence. E. Some other issues Predictive and normative approaches19. I do not accept Mr Milford’s argument that the tribunal applied a normative rather than predictive approach to the behaviour of officials. I accept his argument that sections 2 and 36 require the tribunal to take into account the actual effect that disclosure could have rather than the effect it should have. I also accept Mr Hopkins’ argument that it is relevant to consider how officials ought to react in assessing evidence on how they would react.20. Having re-read the tribunal’s reasons, I cannot find anything to persuade me that the tribunal took the wrong approach. There may be some isolated passages that support Mr Milford’s argument, but taking the tribunal’s reasons as a whole I am satisfied that it did not make this error. At most, it was doing what Mr Hopkins suggested: using what officials ought to do as an evidentiary consideration. Rational reaction to disclosure21. There is one factor that troubles me about the tribunal’s reasoning, although it is not necessary to decide whether this involved an error of law. The tribunal’s reasoning show no recognition of the trouble that can be caused by the media taking a selective approach to what it publishes and putting its own spin on that material. The tribunal’s reasons seem to assume a rational and objective media operating as a responsible overseer on behalf of the public. No doubt, some of the media do behave in that way, but some do not. It is not difficult, looking at the Risk Register, to see how a journalist or blogger with an agenda could select and present parts of the material in a way that would generate attention and attract criticism of the Department. To take an example at a fairly general level, the officials may have identified a possible, difficult problem that requires a lot of action, which is itemised in the register. Objectively, that might seem responsible conduct. But to someone with a different point of view, it could easily be presented as evidence of a project that is in trouble, or as evidence of waste of public funds on a flawed project. This could generate media attention, which would in turn require a response from ministers, leading to the sort of disruption of normal business that Ms Cox explained in her witness statement. I mention this merely as a warning to tribunals that they should take account of the realities of how some sections of the media work and of the impact this can have.22. The tribunal did discuss the public relations handling of the project. But again the discussion seems to assume that problems can be anticipated and planned for. That is certainly true of some problems, but not of all. There is no limit to the ways in which seemingly innocuous details can be used as a means of causing trouble.23. Mr Hopkins objected when I raised this possibility (which I had mentioned in my grant of permission), saying that this involved the ‘distraction’ argument, whereas the Department’s appeal concerned only the ‘chilling effect’. I do not accept that the issues can be kept in such self-contained boxes. The distraction and disruption that such headlines might cause could also have a chilling effect on what the officials put on record. F. A final thought24. Mr Milford accepted at the permission hearing that the more historic the information being released, the less the impact is likely to be. At the end of the substantive hearing, he accepted that the High Level Milestone Schedule could now be released. It is possible that, on reflection, the Department may accept that it is not worth at this stage pursuing the case in respect of some or all of the other information. That is just a thought; it is not a matter for me. Signed on original on 20 July 2015 Edward Jacobs Upper Tribunal Judge
Cited in 5 later judgments