FOIA Exemption Balancing Public Interest vs Regulatory Functions: Analysis of Calvert v Information Commissioner Case

Citation: [2023] UKFTT 894 (GRC)
Judgment on

Introduction

The case of Paul John Calvert v The Information Commissioner & Anor [2023] UKFTT 00894 (GRC) revolves around the balance between public interest in transparency and the potential prejudice to the exercise of a regulatory authority’s functions. It addresses the scope of the Freedom of Information Act 2000 (FOIA) and involves an appeal against a decision notice which denied disclosure of information held by the Care Quality Commission (CQC). This article analyzes the legal principles applied, with a focus on the engagement and the public interest balance of the exemption under section 31 FOIA.

Key Facts

This matter concerns an FOIA request pertaining to the investigation outcomes of two protected disclosures about the North East Ambulance Service (NEAS). The request was initially refused by the CQC, which decision was upheld by the Information Commissioner. The core issues pertain to whether the CQC was entitled to refuse to disclose the requested information based on exemptions under section 31(1)(g) and section 31(2)(c) FOIA, and whether the public interest in maintaining the exemption prevailed over the public interest in disclosure.

Several legal principles and precedents underpin the tribunal’s decision:

  1. Freedom of Information Act 2000 (FOIA): Section 31(1)(g) by virtue of section 31(2)(c) FOIA is a qualified exemption, subject to a public interest test. It exempts information if its disclosure would, or would be likely to, prejudice the exercise of any public authority’s functions for ascertaining whether circumstances justifying regulatory action exist or may arise.

  2. Engagement of the Exemption: The case law WS v Information Commissioner ([2013] UKUT 181 (ACC)) and DVLA Information Commissioner ([2020] UKUT 334 (AAC)) establish that “functions” for section 31(1)(g) include any power or duty by statute, common law, or the Royal Prerogative. Moreover, Hogan v Information Commissioner ([2011] 1 Info LR 588) and DWP v Information Commissioner and another ([2017] 1 WLR 1) set standards for the ‘prejudice test.’ This requires a causal relationship between disclosure and prejudice and a ‘real and significant risk’ of prejudice, rather than a mere hypothetical possibility.

  3. Public Interest Test: Decided in Montague v Information Commissioner & Department for International Trade ([2022] UKUT 104 (ACC)) and R (Evans) v Attorney General ([2015] UKSC 21), the public interest test involves a balance between the public interest in maintaining the exemption and the public interest in disclosure. This determination is made at the date the public authority first refused the request, considering all relevant facts up to that point.

  4. Function of the Regulatory Authority: The CQC carries out functions of ‘ongoing’ assessment on whether regulatory action under the 2008 Act exists or may arise. This includes continuous monitoring of information, including whistleblowing disclosures.

Outcomes

The tribunal dismissed the appeal, concluding that:

  1. CQC Functions: CQC was engaged in a continuous monitoring function to ascertain whether regulatory action was justified with respect to NEAS, which is within the FOIA section 31(1)(g) exemption’s ambit.

  2. Section 31 Engagement: CQC’s assessment of NEAS was ongoing, thereby engaging section 31, as the necessary processes leading to regulatory action had not concluded at the time of the request.

  3. Prejudice: Disclosure of the information was likely to prejudice CQC’s ability to ascertain whether regulatory action was necessary by hindering further investigations and undermining the credibility of the quality assurance processes.

  4. Public Interest: The tribunal found that, while there was significant public interest in disclosure, the broader public interest in enabling the CQC to function effectively and maintain the confidentiality of its scrutiny process outweighed the interest in transparency.

Conclusion

In the case of Paul John Calvert v The Information Commissioner & Anor, the tribunal applied established legal principles concerning FOIA and concluded that the CQC’s exemption under section 31 was correctly engaged. The decision reaffirms the delicate balance public authorities must maintain between transparency and effective execution of their regulatory duties. The tribunal’s systematic analysis demonstrates that while public interest in disclosure is important, it does not automatically override the need to protect the integrity of ongoing regulatory processes and the effective functioning of public authorities.

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