James Haslam v The Information Commissioner
[2024] UKFTT 314 (GRC)
Article 39 v The Information Commissioner
12 September 2023
[2023] UKFTT 733 (GRC)
First-tier Tribunal
A charity wanted a government report on child abuse. The government said releasing it would hurt their work. A judge said protecting kids is more important, so the report must be released. The government also didn't answer quickly enough.
Key Facts
- •Article 39 (a charity) appealed a Decision Notice by the Information Commissioner (IC) which upheld the Department for Education's (DfE) refusal to disclose a report on child safeguarding incidents under the Freedom of Information Act 2000 (FOIA).
- •The DfE claimed the report was exempt under FOIA section 36(2)(c) (prejudice to effective conduct of public affairs).
- •The IC found the public interest favoured maintaining the exemption.
- •Article 39 argued the public interest in disclosing the report, particularly concerning vulnerable children in care, outweighed the DfE's concerns.
- •The DfE's response to the information request was outside the 20 working day timeframe stipulated in section 10 of FOIA.
Legal Principles
FOIA provides a general right of access to information held by public authorities, subject to exemptions.
FOIA section 1
Exemptions in Part II of FOIA are either absolute or subject to the Public Interest Test. Section 36 is a qualified exemption.
FOIA section 2(2)
For section 36(2)(c) to apply, a qualified person (Minister) must reasonably believe disclosure would prejudice the effective conduct of public affairs. This requires substantive, not procedural, reasonableness.
FOIA section 36, Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC)
'Chilling effect' arguments (that disclosure discourages frank discussion) must be treated cautiously and require detailed evidence of likely harm.
Davies v Information Commissioner and The Cabinet Office [2019] UKUT 185 (AAC), Department of Health v Information Commissioner and Lewis [2015] UKUT 0159 (AAC)
In the Public Interest Test, the actual harm and benefits of disclosure must be identified and examined. If the interests are evenly balanced, disclosure is mandated.
All Party Parliamentary Extraordinary Rendition (APPGER) v The Information Commissioner and Foreign and Commonwealth Office [2013] UKUT 0560 (AAC), Department of Health v Information Commissioner & Simon Lewis [2017] EWCA Civ 374
Outcomes
Appeal Allowed
The Tribunal found the Minister's opinion that disclosure would prejudice public affairs was reasonable, but the public interest in disclosure, particularly concerning child protection, outweighed the risk of a chilling effect. The DfE failed to meet the 20-day response deadline under section 10.