Jon Austin v The Information Commissioner
[2023] UKFTT 846 (GRC)
Ivan Murray-Smith v The Information Commissioner & Anor
6 June 2024
[2024] UKFTT 475 (GRC)
First-tier Tribunal
Someone wanted port documents. The government said no, citing security and commercial secrets. A judge agreed, saying releasing the documents could harm national security even if some information seems harmless on its own.
Key Facts
- •Ivan Murray-Smith requested port approval documents for Immingham port from the Home Office.
- •The Home Office refused disclosure citing FOIA exemptions.
- •The Information Commissioner upheld the Home Office's decision.
- •Murray-Smith appealed to the First-tier Tribunal.
- •The appeal concerned the application of FOIA exemptions 21, 31(a), 31(e), and 43(2).
- •The Home Office partially disclosed information during the proceedings.
- •The Tribunal considered the Home Office's justification for withholding the information in closed session.
Legal Principles
Section 31 FOIA is a prejudice-based exemption requiring a causal link between disclosure and prejudice, a real and significant risk of prejudice, and a public interest balancing test.
Hogan v Information Commissioner [2011] 1 Info LR 588; Department for Work and Pensions v Information Commissioner [2017] 1 WLR 1
Public interest is assessed at the date of the request refusal.
Montague v Information Commissioner and DIT [2022] UKUT 104 (AAC); Department for Business and Trade v the Information Commissioner and Montague [2023] EWCA Civ 13
A public authority can consider the ‘mosaic effect’ – the risk of combining disclosed information with existing information to create prejudice.
Sections 58-61
Section 43(2) FOIA protects commercial interests. A causal link between disclosure and prejudice must be established, along with a real and significant risk of prejudice.
Sections 69-80
Section 21 FOIA provides an absolute exemption for information reasonably accessible to the applicant by other means.
Sections 81-90
Outcomes
Appeal dismissed.
The Tribunal found the Home Office was entitled to withhold the information under sections 21, 31(a), 31(e), and 43(2) of FOIA. The public interest in maintaining the exemptions outweighed any public interest in disclosure. The ‘mosaic effect’ and potential prejudice to law enforcement and commercial interests were key factors.