Key Issue: Balancing the Right to Information with Exemptions for International Relations and Public Affairs under FOIA

Citation: [2023] UKFTT 1071 (GRC)
Judgment on

Introduction

The case of Matthew Davis v The Information Commissioner & Anor is a compelling examination of the interplay between the right to information, as enshrined in the Freedom of Information Act 2000 (FOIA), and the exceptions to the right, particularly concerning international relations and the effective conduct of public affairs. This article will dissect the First-tier Tribunal’s decision, unpacking the core legal tenets applied and how they were linked to the relevant parts of the provided case summary.

Key Facts

Matthew Davis appealed against the Information Commissioner’s decision (IC-192547-J2P4), which upheld the Foreign, Commonwealth and Development Office’s (FCDO) refusal to disclose certain information pertaining to the supply of wine from the Government Wine Cellar for events at 10 Downing Street. The refusal was initially based on the exemption under s27(1)(a) and (b) of FOIA, which concerns the protection of international relations. The case explored whether the exemptions were applicable and if the public interest in maintaining these exemptions outweighed the public interest in disclosure.

The first legal principle scrutinized is the engagement of s27 FOIA, which is a prejudice-based exemption contingent on demonstrating that disclosure would likely harm interests stated within sub-sections (a) to (d). The FCDO had to establish a causal relationship between disclosure and prejudice, which must be substantial and not hypothetical (as stated in Hogan v Information Commissioner and confirmed in Department for Work and Pensions v Information Commissioner).

A key contention was whether the public interest in maintaining the s27(1) exemption outweighed the interest in disclosure. Here, the Tribunal considered the mitigation by existing public inquiry into gatherings during COVID restrictions, thereby diminishing the public interest in disclosure. The Tribunal also recognized the reports that disclose the general use of the Government Wine Cellar, contributing to transparency.

Additionally, s36 FOIA was appraised, which deals with the prejudice to the effective conduct of public affairs. The Tribunal deemed this inapplicable due to the absence of an opinion from a qualified person as required by s36(5) – in this case, a Minister of the Crown.

Other FOIA exemptions considered but found not engaged were s28 (relations within the UK), s29 (economic interests), and s43 (commercial interests), as no evidence was presented for their relevance to the withheld information concerning domestic events.

The Tribunal’s methodology hinged on the assessment determined in John Connor Press Associates v Information Commissioner, interpreting “likely to prejudice” as more than a remote possibility, necessitating a real and significant risk.

Outcomes

The Tribunal arrived at a nuanced decision, allowing the appeal in part. Essentially, it ruled that s27(1)(a), (c), and (d) exemptions were engaged concerning events attended by overseas guests due to the potential for damage to international relations. However, the Tribunal was not convinced these exemptions applied to events without overseas guests. Thus, the FCDO was not entitled to withhold information about domestic events under s27(1) FOIA. The s36 exemption was also dismissed on procedural grounds, as was the engagement of other potential exemptions (s28, s29, and s43).

Conclusion

The Tribunal’s decision in Matthew Davis v The Information Commissioner & Anor illustrates the delicate balance the law seeks to maintain between the right to access information and preserving the integrity of international relations and public affairs. The rigorous legal analysis applied by the Tribunal underscores both the nuances of FOIA exemptions and the importance of a rigorous public interest test when these exemptions are engaged. This case serves as both a reaffirmation of government transparency and as a precedent for future cases where the breadth of information disclosure under FOIA is contested. It emphasizes the need for clear evidence to support the engagement of exemptions and the decision-making process stipulated within FOIA, reaffirming the notion that exemptions to disclosure should not be applied broadly or without substantial justification.

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