Information Commissioner v Malnick and the Advisory Committee on Business Appointments: [2018] UKUT 72 (AAC): [2018] AACR 29
Upper Tribunal Administrative Appeals Chamber decision by Judge Markus, Judge Wikeley and Judge Wright on 1 March 2018.
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Judicial Summary
Reported as [2018] AACR 29
Freedom of information – proper approach to applying section 36
Tribunal practice and procedure – First-tier Tribunal no power to remit case to Information Commissioner
Mr Malnick, a journalist, wrote to the Advisory Committee on Business Appointments (ACOBA), a non-departmental body, to request copies of all correspondence, and records of all conversations, between ACOBA and Tony Blair (or his representatives) in the period from July 2005 to July 2009. Ministers must consult ACOBA about any appointments or employment they wish to take up within two years of leaving office, and ministers are under a “code of honour” to abide by its advice. Mr Malnick requested the information arguing that the case exemplified public concern about former Ministers obtaining lucrative post-office appointments. ACOBA refused to disclose the information relying on the exemptions in sections 36(2)(b), 36(2)(c) (prejudice to effective conduct of public affairs) and 40(2) (personal information) of the Freedom of Information Act 2000 (FOIA). Mr Malnick then complained to the Information Commissioner who concluded that the information was exempt from disclosure under both section 36(2)(b) and (c) and so did not go on to consider the application of section 40(2). Mr Malnick appealed to the First-tier Tribunal (F-tT) which allowed the appeal holding that section 36 was not engaged but that, if it was, then the public interest favoured disclosure and that the decision notice was not in accordance with the law and that the Commissioner would need to issue a new decision notice which did not rely on section 36 thereby allowing her to consider whether section 40(2) applied. The section 36 exemption is engaged if, in the reasonable opinion of ACOBA’s designated “qualified person” (QP), disclosure of the requested information would be prejudicial to the effective conduct of public affairs. Only if that threshold is passed will ACOBA (not the QP) proceed to the second stage and decide whether the public interest in maintaining the exemption outweighs the public interest in disclosing it. The Commissioner appealed to the Upper Tribunal (UT) arguing that (1) the F-tT had erred in holding that section 36 was not engaged because the opinion of the QP was not a reasonable one, (2) it had also erred in its assessment of the balance of public interest under section 36, and (3) that it had no power to order the Commissioner to issue a new decision notice. ACOBA was subsequently joined as a party to the appeal and supported the Commissioner on grounds (1) and (2) but not (3).
Held, allowing the appeal, that:
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the F-tT erred in law by taking into account matters of public interest when deciding whether the opinion of the QP was reasonable for the purpose of section 36(2), thereby conflating what were two separate structural steps. Moreover the F-tT s decision that the QP’s opinion was not reasonable was irrational as its analysis of the impact of the court of public opinion was not rationally connected to the threshold question. Section 36(2) is concerned with substantive but not procedural reasonableness (paragraphs 31 to 38, 39 to 42 and 56);
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in considering the public interest balancing test the F-tT failed to ascribe any or appropriate weight to the QP’s opinion (paragraphs 64 to 66);
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when the F-tT allows an appeal against a decision of the Information Commissioner it does not have power to remit the case to the Commissioner and it must substitute a decision notice (paragraph 97). The panel set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be re-decided in accordance with its directions.
Last updated 23 October 2019 + show all updates
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Decision selected for reporting as [2018] AACR 29
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First published.