Davies v The Information Commissioner; The Cabinet Office (GIA): [2019] UKUT 185 (AAC):[2020] AACR 2

Upper Tribunal Administrative Appeals Chamber decision by Mr Justice Nicol, Judge Markus QC and Judge Jones on 11 June 2019.

From:
HM Courts & Tribunals Service and Upper Tribunal (Administrative Appeals Chamber)
Published
4 July 2019
Last updated
22 June 2023 — See all updates
Categories:
Information rights
Sub-categories:
Information rights - Freedom of information - qualified exemptions, Information rights - Information rights: practice and procedure
Judges:
Three Judge Panel
Decision date:
11 June 2019

Read the full decision in [2020] AACR 2ws

Judicial Summary

Freedom of Information Act (2000); Section 36 (2) – Data Protection Act (1998) - Access to information - Closed material procedure - Provision of information

In 2015 the Department for Transport consulted on the penalty fares appeals process, including as to the independence of the Independent Penalty Fares Appeals Service. The appellant complained about the consultation process to the Cabinet Secretary and requested information under the Data Protection Act 1998 (‘DPA’) and the Freedom of Information Act 2000 (‘FOIA’) to include internal and external correspondence relating to emails he had sent.

The Cabinet Office refused to disclose internal civil service emails, relying on the exemptions in section 36(2) of FOIA and that decision was endorsed by the Information Commissioner. The appellant appealed to the First-tier Tribunal. The tribunal held an open hearing and then a closed session from which the appellant was excluded. The tribunal dismissed the appeal and provided open, but not closed reasons. It concluded that it had been reasonable for the Minister for the Cabinet Office, the “qualified person”, to find that the exemption was engaged and that there was the potential for disclosure to inhibit the proper provision of written advice and exchange of ideas. Permission to appeal was granted upon the basis that in the light of the closed materials, the absence of confidential reasons meant that it was arguable that the tribunal’s conclusion was irrational.

Held, allowing the appeal, that:

  1. it was well established that the tribunal was entitled to adopt a closed procedure in order to protect the confidentiality of information the disclosure of which was the subject of the proceedings. However, a closed procedure did not diminish the fundamental obligation of a tribunal to give adequate reasons. If a decision could not be explained adequately without giving closed reasons, the tribunal must do so. Providing closed reasons would not help an excluded party understand the result, but they would assist the tribunal in reaching the right decision and enable an appellate court or tribunal to identify whether the decision contained an error of law (see paragraphs 14-21 of judgment).

  2. the tribunal should have invited the appellant to return to the hearing at the end of the closed session so he could have been provided with as much of an explanation as possible of what took place in the closed session;

  3. although a tribunal might not need to address a matter which was conceded by all parties in open proceedings and so was no longer in issue, the same could not be said of a concession made in closed proceedings because the excluded party would have had no opportunity to object to the concession

  4. the qualified person’s opinion that disclosure of the information would prejudice or be likely to prejudice the matters within section 36(b)(i) and (ii) and 36(c) of FOIA was not reasonable. Section 36 of the FOIA was not engaged in this case and there was no need to consider the balance of the public interest under section 2(2).

Published 4 July 2019
Last updated 22 June 2023 + show all updates

  1. Reported as [2020] AACR 2

  2. First published.