Tribunal Examines Section 36(2) FOIA Balance Between Public Interest and Confidentiality in Edward Williams v The Information Commissioner Case

Citation: [2024] UKFTT 2 (GRC)
Judgment on

Introduction

In the case of Edward Williams v The Information Commissioner ([2024] UKFTT 00002 (GRC)), the First-tier Tribunal, General Regulatory Chamber, Information Rights has meticulously dissected the application of section 36(2) of the Freedom of Information Act 2000 (FOIA). The case concern is the balance between public interest in disclosure of information held by a public authority and the necessity to maintain confidentiality to ensure the effective conduct of public affairs.

Key Facts

The appellant, Edward Williams, contested the decision notice IC-122587-N5G2 from The Information Commissioner which initially endorsed the Greater Manchester Combined Authority (GMCA)‘s use of section 36(2) FOIA to withhold information. Substantial parts of the initially withheld information were released to Mr. Williams later, honing the contention to focus on the remaining redactions. The tribunal scrutinized whether the opinion from the Qualified Person (QP) within the GMCA that the said sections fell within FOIA exemptions was reasonable, along with addressing the public interest test regarding the disclosure of said information.

The legal principles scrutinized by the tribunal predominantly revolve around section 36(2) of the FOIA, which focuses on exemptions related to prejudice to the effective conduct of public affairs. The QP’s role under section 36(5) FOIA and the procedural requirements thereunder were scrutinized to ascertain if an opinion given by QP was reasonable.

The tribunal applied the principles established in Information Commissioner v Malnick, which guided the assessment of the QP’s opinion’s reasonableness. The tribunal emphasized that while procedural reasonableness was irrelevant, the substantive reasonableness of the opinion was subject to review.

The decision’s public interest balance required a weighing of the QP’s opinion and factors both for and against the disclosure, taking into account public interest at the time of the authority’s response. The necessity for a “safe space” for frank discussion between public authorities was factored in. Moreover, the sensitivity pertaining to the victims’ expectation of privacy when communicating their experiences was assessed concerning the expected inhibitory effect on future victim-participant communications.

Outcomes

The tribunal conducted a thorough analysis to delineate information that remained outside the scope of the FOIA request (Information A) and subsequently required no further action.

Notably, parts of the withheld information initially considered exempt (Information B) were deemed, after reconsideration, to have been inappropriately withheld at the time of the GMCA’s response. The tribunal ordered the disclosure of these sections (Information D), observing that any existing public interest in maintaining the exemption was outweighed by public interest in disclosure.

Conversely, certain content was ruled as justifiably withheld under the exemptions stated by section 36(2)(c) FOIA (Information C) due to potential distress to victims and resultant inhibition in future advocacy on their behalf by the GMCA.

Conclusion

This case highlights the rigorous application of the legal framework provided by the FOIA, section 36(2), with an emphasis on the importance of a QP’s reasonable opinion and the balance between public interest in transparency and the need for confidentiality in effective public governance. The tribunal’s systematic approach underscores the critical nature of context-specific analysis in determining whether information should be exempt from disclosure, identifying the critical factors that could influence future decisions regarding the interaction between public entities and the handling of sensitive communications relating to victims of crimes.

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