Line to take - LTT46 - Assumption in favour of disclosure
- FOI/EIR: FOI
- Section/Regulation: s1, s2, s19
- Issue: Assumption in favour of disclosure
- Source: Information Tribunal, High Court
- Details: Guardian & Brooke / BBC (8 January 2007); DWP / Oaten (5 March 2007) FoE / ECGD (20 August 2007); OGC / Oaten (11 April 2008 - High Court)
- Related Lines to Take: n/a
- Related Documents: EA/2006/0011 and EA/2006/0013 (Guardian/Brooke), EA/2006/0040 (DWP/Oaten), EA/2006/00073 (Foe /ECGD)  EWHC 737 (admin) (OGC High Court)
- Contact: EW/LA
- Date: 18/06/2008
- Policy Reference: LTT46
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
The Freedom of Information Act assumes an assumption in favour of disclosure.
In the case of Guardian & Brooke v The Information Commissioner& the BBC, the Information Tribunal stated that there is a presumption in favour of disclosure in the Act. In support of this, it put forward the following arguments*:
- The Act as whole involves a presumption in disclosure. The duties to disclose and to confirm or deny are expressed in general terms so that unless there is a relevant exemption, these duties will operate. In other words, “the “default setting” in the Act is in favour of disclosure” (para 82).
- Section 2(2)(b) states that where an exemption is qualified, information will only be exempt if the public interest in maintaining the exemption outweighs the public interest in disclosing it. This means that if the public interest is equally balanced, the information must be disclosed. Where the qualified exemptions are engaged, therefore, there is a presumption in favour of disclosure, though this only operates where the public interests are equal (para 83).
- Although there is no provision on the FOIA comparable to regulation 12(2) of the EIR which requires public authorities to apply a presumption in favour of disclosure, “there is an assumption built in to FOIA that the disclosure of information by public authorities on request is itself of value and in the public interest, in order to promote transparency and accountability in relation o the activities of public authorities.” Therefore there is always likely to be some public interest in favour of disclosure (para 85).
- The short title of the Act — the Freedom of Information Act — “describes it as an Act to make provision for the disclosure of information held by public authorities” (para 86).
- Section 19, which requires public authorities to adopt and maintain publication schemes, makes reference to “the public interest in allowing public access to information held by the authority.”
It is important to recognise that in the cases of those exemptions with an inbuilt public interest test (s41 - confidentiality, and s40, in respect of DPA schedule 2 condition 6) the balance in that test is in favour of non-disclosure where the two sides are equally balanced.
In later cases, however, the Tribunal has indicated that this ‘presumption’ should more correctly be regarded as an ‘assumption, as in the case of DWP v ICO, where Counsel for the ICO, “stopped short [...] of asserting that there existed a presumption in favour of disclosure, preferring to contend that there was an “assumption” in the Act that disclosure should be made, i.e. that there was a general or public interest to that effect.”
The Tribunal accepted this position and commented at para 29 “It can be said, however, that there is an assumption built into FOIA that the disclosure of information by public authorities on request is in itself of value and in the public interest, in order to promote transparency and accountability in relation to the activities of public authorities. What this means is that there is always likely to be some public interest in favour of the disclosure of information under the Act. The strength of that interest, and the strength of the competing interest in maintaining any relevant exemption, must be assessed on a case by case basis: section 2(2)(b) requires the balance to be considered “in all the circumstances of the case”.
In the Commissioner’s view the public interest in promoting transparency and accountability in relation to the activities of public authorities also means that there can be a public interest in revealing the paucity of information held in relation to a request. For example the absence of discussion on an important issue can of itself be an important matter to reveal.
The Tribunal referred to the above case in FoE v the ICO and ECGD, and confirmed that, “In the context of FOIA the presumption [in the EIR] has been described as an assumption or as a default setting so that relevant information must be disclosed unless FOIA specifies that it be withheld.”
High Court Ruling
The High Court has also considered this issue in OGC v The Information Commissioner (para 68 to 71) and endorsed the approach followed in the DWP case.
It found that “in my judgement , it is both implicit and explicit in FOIA that, in the absence of a public interest in preserving confidentiality, there is a public interest in the disclosure of information held by public authorities. That public interest is implicitly recognised in section 1, which confers, subject to specified exceptions, a general right of access to information held by public authorities The public interest in disclosure is explicitly recognised and affirmed in section 19(3). Section 19(1) imposes on every public authority a duty to adopt and to maintain a scheme for the publication of information by it … Thus I agree with the statement of the Tribunal in Secretary of State for Work and Pensions v The information Commissioner Appeal no. EA/2006/0040 [ para 29]”
(*) The first three arguments were submitted by Counsel for the ICO. The Tribunal agreed with them in full.