Tribunal Upholds Exemption Under FOIA Section 31(1)(a) in Jonathan Bourne v The Information Commissioner & Anor

Citation: [2023] UKFTT 952 (GRC)
Judgment on

Introduction

In the case law summary of Jonathan Bourne v The Information Commissioner & Anor [2023] UKFTT 952 (GRC), the key legal question at issue was whether the information requested by Jonathan Bourne under the Freedom of Information Act 2000 (FOIA) was exempt from disclosure due to potential prejudice to the prevention and detection of crime, as per section 31(1)(a) of the FOIA. The First-tier Tribunal’s decision was awaited as to whether the release of the information into the public domain would likely prejudice law enforcement efforts.

Key Facts

Jonathan Bourne requested the release of a title/UPRN (Unique Property Reference Number) lookup table from HM Land Registry, believing that the UK housing crisis required transparent and evidence-based policies supported by data. When the Land Registry refused, citing exemptions under the FOIA, Bourne appealed the decision. The case centered on the balance between the public interest in preventing crime and ensuring transparency in property ownership and registration data.

In its analysis, the Tribunal focused on the application of section 31 FOIA - the law enforcement exemption. The principal requirements of engaging this section include proving a causal link between potential disclosure and prejudice and the fact that the prejudice must be substantial and not simply a hypothetical risk. Legally, a public authority need not demonstrate that disclosure would certainly lead to an increase in crime but simply that it would likely prejudice the prevention of crime.

The Tribunal also applied principles from preceding case law, notably Hogan v Oxford City Council and the Information Commissioner (EA/2005/0026, EA/2005/0030), which holds that overlapping interests in the public interest test are permissible, provided that the potential prejudice is not merely hypothetical.

Furthermore, the Tribunal articulated that it could not compel a public authority to create a document or dataset that did not previously exist, adhering strictly to the request’s scope under FOIA.

Outcomes

The Tribunal dismissed Bourne’s appeal, concluding that the public interest in maintaining the exemption outweighed the general interest in disclosure. Although recognizing the potential benefits of the requested information for research and policy-making, these were deemed secondary to the risks of fraud and the integrity of the land registration system, which is considered part of the UK’s Critical National Infrastructure.

The Tribunal found a substantial public interest in preventing crime, in part, because the licensed release of datasets through the National Polygon Service contained controls and monitoring provisions critical in minimizing fraud risks. The potential harm to the prevention and detection of crime from the release of the unified dataset was deemed a greater public interest than the benefits of transparency and research enabled by the data’s release.

Conclusion

The decision in Jonathan Bourne v The Information Commissioner & Anor reaffirms the need for public authorities to assess the release of information against the potential for substantial prejudice to the prevention or detection of crime. It underscores that exemptions under the FOIA, particularly section 31(1)(a), are substantive in protecting sensitive information from disclosure that could compromise law enforcement efforts. The case law demonstrates a balancing act that must be performed when considering requests for information, where transparency in governance must be weighed against public safety and the prevention of fraud.