Line to take - LTT14 - Public interest inherent in exemption / exception

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  • FOI/EIR: FOI, EIR
  • Section/Regulation: s2(2)(b), Reg 12(1)(b)
  • Issue: Public interest inherent in exemption / exception
  • Source: Information Tribunal / High Court
  • Details: Bellamy / DTI (4 April 2006); DWP / Oaten (5 March 2007); Ofcom / T-Mobile (IT 4 September 2007,High Court April 2008, Court of Appeal 20 February 2009); DBERR / Dermod O’Brien (High Court 10 February 2009); Office / MoJ (High Court 6 July 2009)
  • Related Lines to Take LTT15, LTT20, LTT48
  • Related Documents: FS50066313, EA/2005/0023, Awareness Guidance 3, (Bellamy), EA/2006/0040 (DWP), EA/2006/0078 (Ofcom), [2008] EWHC 1445 (Admin) (Ofcom High Court) [2009] EWCA Civ 90 (Ofcom Court of Appeal)), [2009] EWHC 164 (QB) (DBERR), [2009] EWHC 611 (Home Office/MOJ),
  • Contact: ID/LA
  • Date: 02/07/2009
  • Policy Reference: LTT14
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

When considering any individual exemption / exception, only the particular public interest inherent in the exemption /exception in question should be considered, rather than all public interest considerations relevant to the subject.

For EIR cases, the public interests in favour of maintaining each individual exception (if engaged) can be aggregated, and weighed against the public interest in disclosure, once the individual considerations above have taken place.

For FOI cases, no final overall aggregation of the public interests in favour of the individual exemptions should take place.

Further Information

When considering the public interest test, only the factors relevant to and inherent in the exemption(s) / exception(s) being claimed should be taken into account.

Public authorities, therefore, are not entitled to rely on general arguments concerning the public interest in withholding the requested information. Similarly, in making a decision, complaints officers should ensure that they do not propose counter arguments to irrelevant considerations.

For example, when considering the public interest in relation to s26 claimed about communications between ministers about military action, it cannot be argued that there public interest in withholding the information because there is public interest in maintaining the confidentiality of communications between ministers. This is not relevant to maintaining to the claim that disclosing this information would or would be likely to prejudice the defence of the British islands etc.

In the case of Bellamy v the In formation Commissioner and the DTI, the Tribunal clarified that only relevant public interest considerations could be taken into account, stating that, “As section 2(2)(b) makes clear, the relevant exercise is to weigh the public interest in maintaining the exemption which is manifested by the relevant provisions against the public interest in disclosing the information. If the weighing process is in favour of the maintenance of the exemption, then any duty to communicate or disclose is disapplied. It necessarily follows that not all public interest considerations which might otherwise appear to be relevant to the subject matter should be taken into account. What has to be concentrated upon is the particular public interest necessarily inherent i the exemption or exemptions relied upon.” (para. 5)

This point was made again by the Tribunal in DWP v the ICO (2006/0040): “The public authority’s assessment of the public interest in maintaining the exemption should focus on the public interest factors specifically associated with that particular exemption rather than a more general consideration of the public interest in withholding the information.” para 24)

In Hogan, the Tribunal similarly stated, “In considering factors that mitigate against disclosure the focus should be upon the public interest expressed explicitly or implicitly in the particular exemption provision at issue.” (para 25)

High Court Confirmation

The Information Tribunal in Ofcom v the ICO and T-MobiIe (a case considered under the EIR) found at paragraph 58 that “for a factor to carry weight in favour of the maintenance of an exception it must be one that arises naturally from the nature of the exception. It is a factor in favour of maintaining that exception, not any matter that may generally be said to justify withholding information from release to the public, regardless of content”

On appeal to the High Court Lord Justice Laws confirmed the Tribunal’s approach as lawful, commenting (at para 47) that “the Tribunal’s view set out at paragraph 58 was indeed reasonable; but more than that... it accords with the statutory scheme.”

This approach was endorsed by Justice Williams in the later case of DBERR v O’Brien v the IC where the Judge said that he shared the concerns raised by the Commissioner’s Counsel with regard to the Tribunal aggregating public interest factors (see paragraphs 57 & 58).

Court of Appeal - EIR cases

The Court of Appeal overturned the High Court’s decision in the Ofcom case and remitted the decision back to the Information Tribunal.

The position in relation to the application of individual exceptions remains as above (that only the public interest inherent in maintaining the particular exception in question should be taken into account).

However, the Court of Appeal agreed with Ofcom’s argument (at para 35) that “where more than one exception is found to apply, they must at some point be considered together for the purpose of the public interest balancing exercise; that is to say, the aggregate public interest in maintaining the exceptions must be weighed against the public interest in disclosure.”

Whilst the ICO is to appeal this aspect of the Court of Appeal to the House of Lords, the Court of Appeal decision is binding upon us.

Therefore, for EIR cases, the public interests from each exception (if engaged) can be aggregated once the individual considerations have taken place. In practice this should only mean a difference in approach for those cases where - in relation to the same information - it is found that more that one exception is engaged, with the public interest for each of the individual exceptions favouring disclosure. In these cases it will be necessary to do a further public interest test in which the public interest in disclosure weighed against the overall, or cumulative, public interest in favour of maintaining all the exceptions that have been engaged.

Court of Appeal - FOI cases

In the High Court case Home Office & Ministry of Justice v the ICO the Court referenced the Ofcom case above and found that “it is necessary to consider whether the aggregate public interest in non-disclosure outweighs the aggregate public interest in favour of disclosure”. However, the ICO considers that this comment is not binding upon us as the Ofcom decision didn’t form part of the appellant’s case and in any case this point wasn’t central to the Court’s decision.

There is also a suggestion at paragraph 35 of this case that the High Court might also not agree with the position regularly taken by both the ICO and the Tribunal in relation to individual exemptions (that only the public interest inherent in maintaining the particular exception in question should be taken into account). However, no actual finding was made on this point so again the ICO does not consider this to be binding upon us.

Our position for FOIA cases remains as set out above, that only public interest arguments inherent to the exemption in question should be accepted, and that there is no requirement to undertake an aggregated public interest test.