Line to take - LTT107 - No prejudice / adverse effect test for class based exemptions / exceptions
- FOI/EIR: FOI, EIR
- Section/Regulation: s21, s22, s23, s24, s30, s32, s34, s35, s37, s39, s40, s41, s42, s44, reg 12(4)(a)-(e)
- Issue: No prejudice / adverse effect test for class based exemptions / exceptions
- Source: Information Tribunal, High Court
- Details: ECGD / FOE (20 August 2007 – IT; 17 March 2008 - High Court); DWP / Oaten (5 March 2007)
- Related Lines to Take: n/a
- Related Documents: EA/2006/0073 (ECGD IT),  EWHC 638 (Admin) (ECGD High Court), EA/2006/0040 (DWP)
- Contact: LA
- Date: 20/06/2008
- Policy Reference LTT107
Line to take
Where a class based exemption or exception is claimed then it is not necessary to demonstrate prejudice or harm to any particular interest in order to engage the exemption or exception. Where the exemption or exception is subject to a public interest test however, this may be a relevant factor to be taken into account in the balancing of the public interest.
In ECGD v Friends of the Earth and the ICO the Information Tribunal considered the application of Regulation 12(4)(e) of the EIR which provides a potential exception, subject to a public interest test, where “the request involves the disclosure of internal communications”
It commented at paragraph 53 that “it is sufficient to point to the onus which clearly rests on a public authority in the context of the EIR whenever it chooses to rely on an exception, such as the present case, that onus being to specify clearly and precisely the harm or harms that would be caused were the disclosure to be ordered.” and at paragraph 63 that “the critical question remaining whether disclosure of the information requested would in all the circumstances be shown to cause or be likely to cause the suggested harm”
It then went on to comment at paragraph 70 that the public authority was “unable to advance any evidence of any real or persuasive weight which could have led the Tribunal to determine that there existed a real, as distinct from an imagined, harm or prejudice which would necessarily result from the requested disclosure.
High Court Ruling
This decision was appealed to the High Court which, although it dismissed the Appeal, criticised the Tribunals comments above because “The Impression given by paragraphs 53, 63 and 70 is that the Tribunal did set up a hurdle or threshold of proof of actual particular harm which forms no part of the statutory test which it should apply. If I had been satisfied that the error was central to its decision, I would have allowed the appeal and remitted the issue to be determined afresh by the Tribunal.”
The High Court described the test to be applied under the EIR as follows (para 23) “As is evident from the words of regulation 12, potentially exempt information is dealt with in two categories or classes Where an item of information falls within one of the classes identified in regulation 12(4) it is not necessary, for the provision of 12(1) and (2) to be engaged, that prejudice to any particular interest should be disclosed. When regulation 12(5) is in issue, it is.”
The High Court also confirmed and commended the approach taken by the Tribunal in Secretary of State for Work and Pensions v The Information Commissioner in relation to FOIA. In this case the Tribunal had observed at paragraph 23 that “The Exemption in section 35(1)(a) [of the 2000 Act] is a ‘class’ exemption rather than a prejudice-based exemption. That it to say, in order for the exemption to be engaged the public authority does not need to demonstrate that any specific prejudice or harm would flow from the disclosure of the information in question
Public Interest Test
This line, however, should not be taken to mean that for class based exemptions or exceptions any harm or prejudice likely to result from disclosure will always be completely irrelevant. Under FOIA some class based exemptions are subject to a public interest test and under EIR all exceptions are subject to such a test. Where a public interest test is to be applied then arguments about prejudice or harm (which must be specific to the exemption or exception claimed — see also LTT14) likely to flow from the disclosure of withheld information may be relevant factors in the balancing of the public interest.
The point made by the High Court in ECGD was not that any potential harm was irrelevant but that it was not an initial hurdle to be overcome in order to engage the exception.
The reason why the High Court did not remit the IT’s decision back to the Tribunal for a second hearing was because it found that although the IT had given the impression' of using an incorrect test it had actually applied a correct test. It had set out the test as including an initial prejudice test, but had then gone on to apply the correct test of balancing of public interest factors in favour of disclosure against those in favour of maintaining the exception. The High Court commented that the Information Tribunal’s “reasoning in paragraphs 75 to 76 showed that, even if it had expressed itself unfortunately or even made errors of law in the passages which I have identified [including paragraphs 53, 63 and 70] it nonetheless applied the correct test.”