Centre for Animals and Social Justice v Information Commissioner & Anor
[2023] UKFTT 673 (GRC)
Ecotricity Group Limited v The Information Commissioner & Anor
23 July 2024
[2024] UKFTT 643 (GRC)
First-tier Tribunal
A company asked the government for information about a pig cull. The government refused, saying releasing the info would endanger people and harm the farm's business. A judge agreed with the government, saying that keeping information secret in this case helps prevent disease and protects the farm’s business. The judge decided it's more important to keep the information secret than to make it public.
Key Facts
- •Ecotriciy Group Limited (Appellant) made two FOIA requests to the Animal and Plant Health Agency (APHA) regarding a pig cull at a farm.
- •APHA refused to confirm or deny holding the requested information, relying on exemptions under sections 38(2) and 43(3) of the FOIA.
- •The Information Commissioner upheld APHA's decision.
- •Ecotriciy appealed to the First-tier Tribunal (FTT).
- •The FTT considered whether the information was in the public domain and the balance of public interest.
- •The FTT heard evidence from APHA, including closed evidence, and from Ecotriciy.
Legal Principles
FOIA's right of appeal involves a full merits consideration of whether the public authority's response is in accordance with Part 1 of FOIA.
Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC)
Information is exempt if disclosure would endanger physical or mental health or safety (s38(1) FOIA). The duty to confirm or deny doesn't arise if compliance with s1(1)(a) would likely have either effect (s38(2) FOIA).
FOIA s38
Information is exempt if disclosure would prejudice commercial interests (s43(2) FOIA). The duty to confirm or deny doesn't arise if compliance with s1(1)(a) would likely prejudice those interests (s43(3) FOIA).
FOIA s43
In prejudice cases, (1) applicable interests must be identified; (2) the nature and causal relationship of the prejudice must be considered; and (3) the likelihood of prejudice must be considered. The risk must be 'real and significant'.
Hogan v Information Commissioner [2011] 1 Info LR 588; Department for Work and Pensions v Information Commissioner [2017] 1 WLR 1
'Likely to prejudice' means more than a hypothetical or remote possibility; there must be a real and significant risk.
John Connor Press Associates v Information Commissioner (EA/2005/0005)
Public interest considerations include accountability and transparency, animal welfare, and the lawfulness of government actions.
Beloff v Pressdram Ltd [1973] 1 All ER 241
Outcomes
Appeal dismissed.
The FTT found that s38(2) FOIA was not engaged because APHA failed to provide sufficient evidence that confirming or denying information would endanger anyone's health or safety. While s43(3) FOIA was engaged, the public interest in maintaining the exemption outweighed the public interest in disclosure. The FTT placed significant weight on APHA's evidence regarding the importance of maintaining confidentiality to encourage voluntary cooperation in disease surveillance.
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