"Counsel directed the Tribunal to the rule 14 order, taking the tribunal through the relevant information and evidence contained within the CLOSED bundle. Mr Ostrowski directed the Tribunal to the unredacted version of the documents sent to the First Respondent which were provided in redacted form in the OPEN bundle. Dr Williamson's evidence covered: a) Information about the farm in question and the disease investigation which took place and why the cull occurred. b) That the Temporary Control Zone relating to Foot and Mouth Disease at the farm in question was revoked on24 June 2022 . c) That a small number of diseased pigs (approximately 10) were euthanised on28 June 2022 as part of the official APHA investigation in order to obtain material required for the notifiable disease testing which could not be collected from live pigs. d) That on29 June 2022 the notifiable disease investigation found that notifiable disease was no longer suspected on the premises. e) Examples were given where potential non-statutory disease threats have been detected and private vets voluntarily liaised with APHA who provided advice and additional testing at no charge enabling mitigation of risks and/or concerns to be allayed. The panel further questioned Dr Williamson on non-statutory diseases. Dr Williamson explained the definition and meaning of non-statutory diseases and the events at the farm in June 2022."
“Section 1 General right of access to information held by public authorities. (1) 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. … Section 2 Effect of the exemptions in Part II. ... (2) 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. ... Section 43 Commercial Interests ... (1) Information is exempt information if it constitutes a trade secret. (2) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it). (3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice the interests mentioned in subsection (2). ... Section 58 Determination of appeals (1) If on an appeal under section 57 the Tribunal considers- (a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal. (2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based”
"We interpret the expression "likely to prejudice" as meaning that the chance of prejudice being suffered should be more than a hypothetical or remote possibility; there must have been a real and significant risk."
"Likely connotes a degree of probability that there is a very significant and weighty chance of prejudice to the identified public interests. The degree of risk must be such that there 'may very well' be prejudice to those interests, even if the risk falls short of being more probable than not." [100]. 44. We adopt the interpretation of "likely to prejudice" as meaning that the chance of the prejudice being suffered is more than a hypothetical or remote possibility; there is a real and significant risk. 45. Taking together the matters which Dr Williamson addressed in her OPEN and CLOSED evidence, we are satisfied that were APHA to confirm to the world whether it held such information, by its very authority and expertise, that would create a real and significant risk of prejudice. 46. We find that 43(3) FOIA is engaged in relation to the requested information. The Public Interest 47. In considering factors in favour of disclosure, we accept that there is a public interest in disclosing information that promotes accountability and transparency to maintain confidence and trust in a public authority. We also accept that there is a significant public interest in animal welfare, and in the public being able to be confident that those persons and entities tasked with promoting it, and protecting animals, are accountable in that regard. 48. The evidence of Mr Stein, for the Appellant, was that there is little in the public domain in relation to mass animal culls and disease control measures; he considered the drone footage of the cull procured by the Appellant to be highly distressing, possibly involving illegal conduct; to understand whether a departure from the lawful methods of killing farmed animals is justified, whether by way of official derogation or otherwise, it is necessary to understand whether disease is present at the time of killing. He accepted that while the information requested by the Appellant may support a private prosecution against the Farm and may assist the Appellant in challenging APHA by way of judicial review if the cull was unlawful, those matters are not directly relevant to the consideration of the public interest, which is whether the cull was lawful per se. 49. We accept that there is a public interest in the lawfulness of the cull and in relation to APHA's oversight of it: see Beloff v Pressdram Ltd[1973] 1 All ER 241 , where Ungoed-Thomas J observed [260] that public interest covers "matters, carried out or contemplated, in breach of the country's security, or in breach of law, including statutory duty, fraud or otherwise destructive of the country or its people, including matters medically dangerous to the public; and doubtless other misdeeds of similar gravity." 50. We also accept the Appellant's submission that the fact that the local authority had not prosecuted anyone involved in the cull is not determinative of whether the cull was lawful and cannot of itself be taken to satisfy the Appellant's concerns, which it is entitled to pursue by requests made of APHA under FOIA. 51. In our assessment of the public interest considerations which might justify maintaining the s43(3) exemption, we drew great assistance from Dr Williamson's oral evidence. Counsel for the Appellant subjected her to rigorous cross-examination. We considered her to be an impressive witness. Her oral evidence, particularly in CLOSED session, where she was able to expound freely, was evidently based on her substantial experience of the real-life consequences of pig disease identification for all those working in the pig industry. 52. In her OPEN evidence, she explained that she, in conjunction with the Department for Environment, Food and Rural Affairs ("
“the Government agency responsible for surveillance of pig diseases confirming or denying to the world that it holds information of the type requested in relation to a particular incident or investigation at a particular site (ibid).”
“Unfortunately a cull did take place at the farm, but it was conducted with the advice of official vets and under the full supervision of vets at the time of the cull.”
“The protection may be lost if the information is in the public domain. In this regard there is, per Browne v Associated Newspapers Ltd[2008] QB 103 at [61], “…potentially an important distinction between information which is made available to a person’s circle of friends or work colleagues and information which is widely published in a newspaper.””
“A relevant circumstance will be the extent to which the information is in the public domain. Information that was private may become so well known that it is no longer private. Whether this is so is a matter of fact and degree - see K v News Group Newspapers Ltd[2011] EWCA Civ 439 ;[2011] 1 WLR 1827 , para 10(3). In relation to journalistic, literary or artistic material, section 12(4) of the HRA requires the court to have particular regard to “the extent to which the material has, or is about to, become available to the public””. (See also e.g. the speech of Lord Goff in AG v Guardian Newspapers Ltd (No 2)[1990] 1 AC 109 at pp.281-283: “once it has entered what is usually called the public domain (which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it”
“it does not follow that because a risk had been created by the broadcast, further publication in newspapers would not create fresh and added risk of prejudice” per Leggatt LJ. In A-G v MGN Ltd [1997] EMLR 284, the Divisional Court noted that it was not in serious dispute that “the mere fact that, by reason of earlier publications, there is already some risk of prejudice does not prevent a finding that the latest publication has created a further risk”
“53. Mr Rosenbaum submitted that there would be no “disclosure” of information already in the public domain because NCND is a protective concept which is intended to be used where complying with the duty to confirm or deny would disclose sensitive or potentially damaging information that falls under an exemption. He said that it could not have been the intention of Parliament that NCND could be relied on where there was no potential for harm because the information was effectively already a matter of public record. In any event, he submitted that there had in fact been official confirmation of the information in “True Spies”. 54. I reject Mr Rosenbaum’s submission that section 23(5) cannot apply where there is no potential for harm because the information is already in the public domain. To invite consideration of the extent to which information is already known, or whether revelation of such information would be harmful, flies in the face of the purpose of section 23 as identified in APPGER and as summarised by Mr Knight’s principle 5. The position is different if there is official confirmation of the revealed information, because there is then no need for the decisionmaker to get involved in such considerations. 55. Official confirmation adds something to other information in the public domain, even if that is credible information provided by third parties who are well-placed to provide that information. In the context of section 23(5), this follows from the fundamentally important exclusionary principle referred to in Cobain and Lownie (see Mr Knight’s principle 4). Mr Talalay referred to the FTT decision in Commissioner of the Police of the Metropolis v Information Commissioner (EA/2010/0008) which upheld the MPS’s reliance on section 23(5) on the basis that confirmation or denial would reveal the involvement or non-involvement of the security services in the operation in issue, even though the then President of the USA had made a public announcement revealing that information. As a decision of the FTT, it is not binding but I mention it because it provides a clear example of the importance and effect of the principle, which is not eroded by information provided by a credible source (the US President) but which has not been officially confirmed. This is reinforced by the Upper Tribunal’s suggestion in Corderoy at paragraph 60 that a NCND approach would be inappropriate where there was “expected and confirmed involvement of the security bodies” (my emphasis). 56. The point applies more generally, however, and is illustrated by the decision in DIL and others v Commissioner of Police of the Metropolis[2014] EWHC 2184 (QB) , albeit in a non-FOIA context. There the High Court considered a NCND policy, relied on by the police in order to avoid pleading a defence to a civil claim, in order to protect the identities of undercover officers. The officers had all been named in the media and some had also self-disclosed. At paragraph 44 the Court said that self-disclosure, while relevant, did not have the same significance as official confirmation. Nor did naming in the media. Two of the officers who had not self-disclosed had been named publicly in a variety of media (and with a photograph of each in one national newspaper). However, there had been no official confirmation that they were undercover officers. The Court held (paragraph 47) that the police were entitled to rely on NCND in relation to those officers. 57. As these cases show, there is a qualitative difference between credible third party information and official confirmation of that information. The FTT attempted to address this by stating “Although the involvement of MI5 has not been officially confirmed neither will it be officially confirmed by a ‘yes’ or ‘no’ answer: it is purely an inference that the public is expected to draw from the information expressly communicated. This misses the point. The provision of official confirmation by means of a ‘yes’ or ‘no’ answer that that information was held would provide a qualitatively different foundation for the drawing of inferences from that provided by the unconfirmed information contained in the TV programme.”
“The rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff.”
“Following suspicion of vesicular disease in pigs, and as a precaution to prevent the spread of disease, a 10 km Temporary Control Zone has been declared around a premises near Feltwell, Kings Lynn and West Norfolk, Norfolk”
“Unfortunately a cull did take place at the farm, but it was conducted with the advice of official vets and under the full supervision of vets at the time of the cull.”