Tribunal Rules in Favor of Transparency: Egan v The Information Commissioner Case Analysis

Citation: [2022] UKFTT 529 (GRC)
Judgment on

Introduction

The case of Dillan Patrick Egan v The Information Commissioner represents a significant decision in UK information rights law that explores the application of various exemptions within the Freedom of Information Act 2000 (FOIA). This article analyses the legal principles the First-tier Tribunal (General Regulatory Chamber) applied when considering if the Information Commissioner’s decision notice was in accordance with the law regarding an appeal by Mr. Egan concerning a request for an investigation report from the Hywel Dda University Health Board.

Key Facts

Dillan Patrick Egan, having previously seen a largely unredacted version of an investigation report into physiotherapy practices during COVID-19, appealed against the Information Commissioner’s decision that upheld the Health Board’s use of section 31 FOIA to withhold information. Egan argued that the application of section 31 should be revoked and the full report released. The Commissioner’s initial stance changed, and he conceded that section 31 was not engaged, further inviting the Tribunal to consider other FOIA exemptions such as sections 40 and 41 applied by the Health Board.

The Tribunal’s analysis centered on several crucial legal principles under the FOIA and the GDPR:

  1. Section 31 FOIA (Law Enforcement) - This section was initially applied by the Commissioner to uphold the Health Board’s withholding of information. However, it was later accepted that the Health Board’s employees, as registered professionals, would not refuse cooperation in future investigations despite disclosure. Thus, section 31 was deemed not engaged.

  2. Section 40 FOIA (Personal Information) - The Tribunal found that section 40(1), allowing authorities to withhold personal data of the applicant, was applicable, but they contended that the Health Board’s application of section 40(2) to withhold third party personal data was too broad.

  3. Section 41 FOIA (Information Provided in Confidence) - The Tribunal acknowledged that this exemption could perturb to internal information if imparted with an obligation of confidence. However, the interview information’s confidentiality undertaking by staff was ambiguous. The Tribunal concluded that the public interest in disclosure outweighed the confidentiality interests due to the overarching concern of patient safety and public health matters amid COVID-19.

  4. Section 38 FOIA (Health and Safety) - The Health Board’s use of this exemption to withhold information was not upheld because the ‘endangerment’ to individuals’ mental or physical health could not be definitively shown.

  5. Data Protection Principles - The GDPR’s Article 5(1)(a) was significant in assessing whether the Health Board’s processing of personal data would be lawful, fair, and transparent if disclosed.

  6. Breach of Confidence Common Law Test - The three-part test established in Coco v A N Clark (Engineers) Ltd [1969] was applied, requiring evaluation of the quality of confidence, the circumstances of imposition, and detriment due to unauthorised use.

  7. Public Interest and Proportionality Tests - The Tribunal also applied the public interest and proportionality tests to the breach of confidence, as explored in the balance of the right to privacy against the public interest in disclosure.

Outcomes

The Tribunal allowed Egan’s appeal, finding that the Commissioner’s Decision Notice was not in accordance with the law regarding section 31. They also decided not to uphold sections 38 and 41 FOIA and only partially upheld section 40. Consequently, it was ordered that the Health Board disclose the requested information except for the names of individuals under section 40(2) FOIA and Egan’s personal data under section 40(1).

Conclusion

The case of Egan v The Information Commissioner demonstrates the Tribunal’s rigorous approach to examining FOIA exemptions against the principles of lawfulness and the public interest. The Tribunal’s decision underscores the importance of transparency in public inquiries, particularly those involving public health and safety concerns, and sets a precedent for the balance of privacy rights against the public interest in the context of information disclosure under FOIA. The case also highlights the complexities involved with lawful data protection practices and the expectations of confidentiality in internal investigations.