Thomas Carroll MBE v Information Commissioner
[2024] UKFTT 833 (GRC)
Sue Bramall v The Information Commissioner
19 July 2024
[2024] UKFTT 628 (GRC)
First-tier Tribunal
Someone asked the government for information about a house for asylum seekers. The government refused, saying it could be dangerous. A court decided the government didn't show it would actually be dangerous and ordered them to answer the question.
Key Facts
- •Sue Bramall requested information from the Home Office about complaints regarding a specific HMO property used to house asylum seekers.
- •The Home Office refused to confirm or deny holding the requested information, citing section 38(2) of the Freedom of Information Act 2000 (FOIA) (health and safety).
- •The Information Commissioner upheld the Home Office's decision.
- •Bramall appealed to the First-tier Tribunal (FTT).
- •The FTT allowed the appeal, finding the Commissioner erred in concluding section 38(2) FOIA was engaged.
Legal Principles
Section 38(2) of FOIA allows a public authority to neither confirm nor deny whether it holds information if confirmation or denial would, or would be likely to, endanger the health or safety of an individual.
Freedom of Information Act 2000
For section 38(2) to apply, there must be a causative link between a confirmation/denial and the endangerment. 'Would' means more probable than not; 'would be likely to' means a real and significant risk.
Hogan and Oxford City Council v Information Commissioner [2011] 1 Info LR 588; Department for Work and Pensions v Information Commissioner & Frank Zola [2016] EWCA Civ 758; Carolyne Willow v Information Commissioner and Ministry of Justice [2017] EWCA Civ 1876
Official confirmation adds to information already in the public domain, even if credible.
Commissioner of the Police of the Metropolis v Information Commissioner & Rosenbaum [2021] UKUT 5 (AAC)
The Tribunal has the power to review findings of fact and determine if a decision notice was in accordance with the law.
FOIA section 58
Outcomes
Appeal Allowed
The Tribunal found insufficient evidence to support the conclusion that confirming or denying the information would endanger the health or safety of individuals at the property. The Commissioner relied too heavily on the Home Office's assertions without sufficient supporting evidence.
Substituted Decision Notice issued
The Home Office must provide a fresh response, clarifying whether it holds the requested information and disclosing it or claiming relevant exemptions (other than section 38(1) FOIA).