Tribunal Upholds Decision on Confidentiality of Information in FOIA Appeal

Citation: [2023] UKFTT 966 (GRC)
Judgment on

Introduction

The case of MO v The Information Commissioner & Anor analyzes a decision made by the First-tier Tribunal (General Regulatory Chamber) on Information Rights regarding an appeal under the Freedom of Information Act 2000 (FOIA). At the heart of the case is whether the respondents were correct in withholding information requested under FOIA, citing the exemption of information provided in confidence, commonly referred to as section 41. This article provides an analysis of the legal principles applied to the specific facts of the case and the key topics discussed within the judgment.

Key Facts

The appellant, identified as MO, sought information from the Bristol City Council concerning reports from the Fawcett Society on the negative impact of Sex Event Venues (SEVs) to justify a potential ‘nil cap’ policy. Initially, the Council refused to disclose the information on personal data grounds (section 40(2) FOIA) but subsequently cited confidentiality (section 41 FOIA) after internal review. The Information Commissioner upheld the Council’s decision, prompting MO to file an appeal with the Tribunal. The Tribunal was tasked with determining if the information was indeed provided in confidence and whether the public interest in maintaining that confidence outweighed the public interest in disclosure.

The Tribunal’s decision hinged on section 41 of FOIA, which exempts information provided in confidence, underlining the significance of ensuring confidentiality in maintaining trust in public authority decision-making processes. The case applied several established legal principles, primarily derived from Coco v A N Clark (Engineers) Ltd [1968] FSR 415, referred to throughout the decision. The Coco test provided a three-stage analysis for establishing a breach of confidence, involving:

  1. The requirement for information to have “the necessary quality of confidence.”
  2. The information must have been “imparted in circumstances importing an obligation of confidence.”
  3. Disclosure of the information must cause “detriment to the party communicating it.”

The Tribunal considered these criteria alongside the public interest defense as outlined in HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776, which involves a balancing exercise between the interest in maintaining confidentiality and the interest in disclosure. Additionally, the applicability of Article 10 of the European Convention of Human Rights (ECHR)—which protects the right to freedom of expression—was examined.

Outcomes

The Tribunal concurred with the Information Commissioner’s decision to uphold the Council’s reliance on section 41. In doing so, it found that the information provided by Bristol Fawcett to the Council had “the necessary quality of confidence” and was indeed “imparted in circumstances importing an obligation of confidence.” Furthermore, the Tribunal agreed that disclosure could cause detriment due to potential harassment, which satisfied the third stage of the Coco test.

Upon evaluating the public interest defense, the Tribunal weighed the inherent public interest in maintaining confidences, particularly where trust in the public authority’s decision-making process was paramount, against the public interest in disclosure. It concluded that maintaining the confidentiality of the report outweighed the public interest in its disclosure. Consequently, section 41 was engaged, exempting the report from disclosure, and leading the Tribunal to dismiss the appeal.

Conclusion

The case reaffirms the principle that information provided in confidence to public authorities can be protected from disclosure under FOIA when certain criteria are met. The Tribunal’s meticulous application of the Coco test and consideration of the public interest defense and Article 10 ECHR underscore the sensitivity and complexity surrounding the disclosure of information in public debates. In this instance, maintaining the confidentiality of sensitive information was deemed to serve the greater public interest, ensuring that trust in public authority decision-making is not eroded and protecting individuals involved from potential harassment.

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