Some broad themes have emerged from decisions on Freedom of Information Act (FOIA) cases, particularly decisions of the Information Tribunal. Generally speaking, the Tribunal can be said to have favoured an expansive application of the regime. One manifestation of this, and this article’s focus, is the extent to which confidential information is protected. Other emerging themes include the need for public authorities to provide clear evidence in support of invoking FOIA exemptions and an emphasis on public interest considerations when analysing the way exemptions have been applied. These themes have suggested a strong tendency towards greater openness, meaning third parties passing information to public authorities are increasingly mindful of the potential for disclosure.
A more restrictive approach?
Despite this trend, there are signs that the courts, which are dealing with growing numbers of freedom of information cases on appeal, may consider that this ‘expansive approach’ has moved too far in favour of open government. For example, the House of Lords directly cautioned against too liberal an approach to freedom of information in a recent case involving the interaction between the Scottish regime and the Data Protection Act 1998 (Common Services Agency v Scottish Information Commissioner (Scotland)  UKHL 47). In this case, their Lordships overturned a decision by the Court of Session, which had supported the finding that certain information should be disclosed in a form that NHS National Services Scotland considered would potentially breach the data protection principles. In his decision, Lord Hope noted that there was ‘much force in Lord Marnoch’s observation in the Inner House that, as the whole purpose of [the Freedom of Information (Scotland) Act 2002] is the release of information, it should be construed in as liberal a manner as possible’. However, Lord Hope considered that this proposition ‘must not be applied too widely’, because it is ‘obvious that not all government can be completely open’.
In another recent case, British Union for the Abolition of Vivisection v The Home Office  EWCA Civ 870 (the BUAV case), which is the focus of this article, the courts considered the interaction between the FOIA and a relatively obscure statutory prohibition on the disclosure of information. The High Court in this case was openly critical of the Tribunal’s approach to the law of confidentiality, an analysis that was subsequently approved by the Court of Appeal.
Section 44 – statutory bars to disclosure
There is an inevitable tension between the FOIA and the many separate legislative provisions that prohibit the disclosure of information. Section 44 of the FOIA provides that information is exempt if its disclosure is otherwise prohibited. It identifies three categories of existing legal bars to disclosure: prohibitions under any enactment; prohibitions contained in any European Community obligation; and disclosures that would constitute or be punishable as a contempt of court.
This is an ‘absolute’ exemption, meaning that public authorities applying section 44 of the FOIA do not need to go on to consider whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information (ie the ‘public interest test’ applied to qualified exemptions under FOIA). In 1997, the white paper that announced the government’s intention to introduce freedom of information legislation also announced an intention to ‘repeal or amend the many existing statutory bars to disclosure’, with the primary aim being to remove inconsistencies between the existing legislative requirements and the proposed new regime of open government. Section 75 of the FOIA duly permits the secretary of state to make orders to remove or relax certain statutory provisions that prohibit the disclosure of information. The government conducted a detailed review of such statutory prohibitions and, in a final report published in 2005, identified 183 of them, 111 of which it decided to retain or keep under review. Since then, there have been numerous decisions by the Information Commissioner’s Office (ICO) and the Tribunal involving the application of section 44 of the FOIA in the context of statutory bars to disclosure. Unsurprisingly, some prohibitions, such as section 348 of the Financial Services and Markets Act 2000, feature more often in the case law than others. One that has featured little, but has proved particularly contentious, is section 24 of the Animals (Scientific Procedures) Act 1986 (ASPA). This provision was the focus of the BUAV case.
Background to the BUAV case
The case arose from a freedom of information request by the BUAV for certain categories of information supplied to the Home Office by applicants seeking licences for projects involving animal experimentation. Under section 24 of the ASPA, confidential information provided with such applications is protected from disclosure. Section 24(1) of the ASPA provides:
‘A person is guilty of an offence if otherwise than for the purposes of discharging his functions under this Act he discloses any information which has been obtained by him in the exercise of those functions and which he knows or has reasonable grounds for believing to have been given in confidence.’
Section 24 of the ASPA was considered by the government as part of its review and the decision taken to retain it. This decision was specifically announced to parliament in July 2004 with the proposal that the provision be looked at again in 2006 (although this further review has yet to take place).
The Home Office officials charged with responding to the request in this case refused to disclose all of the information sought by the BUAV, on the basis that the withheld information had been ‘given in confidence’ for the purpose of section 24 of the ASPA, and so the absolute exemption provided by section 44 of the FOIA was engaged. In refusing the BUAV’s request, the Home Office placed reliance on numerous other exemptions, including section 41 of the FOIA. This absolute exemption provides that information is exempt if disclosure would constitute a breach of confidence actionable by any person. The ICO, which agreed with the Home Office’s interpretation of the law, did not consider it necessary to analyse section 41 of the FOIA (or the other exemptions cited) on the basis that section 44 of the FOIA applied.
The subsequent appeals demonstrate the significance of the distinctions that may need to be made by public authorities when applying these two exemptions, at least to the extent that the relevant statutory bar refers to information that is ‘given in confidence’, as well as the risks they face if they conflate their analyses of the two exemptions without due consideration.
One of the key issues facing the Home Office, and ultimately the courts, was the narrow question of whether section 44 of the FOIA applies to information provided under section 24 of the ASPA only if the information is otherwise capable of protection under the law of confidentiality or whether it is enough for it to be provided merely on the understanding that it is confidential.
Different approaches of the Tribunal and High Court
Following the ICO’s decision, the BUAV appealed successfully to the Tribunal, which held (among other things) that ‘even though section 24 ASPA does not make specific reference to the law of confidence, the use of the phrase “given in confidence” means that the information in question was entitled to protection under that law’. Accordingly, the Tribunal’s view was that the law of confidence should be ‘imported’ into an interpretation of the statutory prohibition.
The High Court disagreed in strong terms. This difference in opinion stemmed from varying interpretations of section 24 of the ASPA when viewed through the prism of freedom of information legislation and, in particular, section 41 of the FOIA. The Tribunal held that the phrase ‘given in confidence’ in section 24(1) of the ASPA imported the three-part test for liability for breach of confidence summarised by Megarry J in Coco v A N Clark (Engineers) Ltd  RPC 41, which it formulated as follows.
- Does the information in question have the necessary quality of confidence?
- If so, was it disclosed in circumstances that gave rise to an obligation to maintain its confidentiality?
- Would its disclosure in breach of that obligation cause harm to the person who made the original, confidential, disclosure?
On this reading, section 24(1) of the ASPA becomes more closely aligned with the language of actionable breach of confidence employed in section 41 of the FOIA. As a consequence, the Tribunal held that the Home Office had not conducted the ‘required level of review’ in deciding which information within the relevant applications was confidential.
However, the High Court rejected this approach, describing the Tribunal’s interpretation of the law of confidence as ‘flawed’. In particular, Eady J criticised the Tribunal’s failure to acknowledge the significant modern developments in the law of confidence (including the influence of the case law of the European Court of Human Rights and the refinement of the tort of misuse of private information). These omissions had resulted in the Tribunal’s incorrect acceptance of the principles in Coco v Clark as the only relevant test for confidential information. An actionable breach of confidence need not inevitably be founded on the Megarry test. The High Court clarified that some information may be treated as private even though it is of a ‘trivial’ nature and ‘not such as to have about it any inherent “quality of confidence”’ and, as such, an obligation of confidentiality may arise in relation to it ‘merely because it is imparted as being confidential, either expressly or impliedly’. Eady J therefore favoured a straightforward reading of the text of section 24 of the ASPA.
In the High Court’s view, section 24 of the ASPA is concerned with the relevant parties’ states of mind at the point at which the information in question is received. In contrast, section 41 of the FOIA seeks to determine whether disclosure would constitute an actionable breach of confidence at the time requested information is revealed. Therefore, the High Court considered that the ASPA does not require the recipient of the information to decide whether information ‘given in confidence’ should be disclosed in any event under the FOIA. Further, the Court highlighted that section 24 of the ASPA is penal in nature and is likely to require a lay person to make the relevant decision, presumably without a detailed knowledge of the law on equitable duty of confidence. Accordingly, the High Court agreed with the Home Office and the ICO that disclosure would breach section 24 of the ASPA and it followed that the absolute exemption granted by section 44 of the FOIA was applicable.
The Court of Appeal
As a result, the Court of Appeal was faced with a deceptively difficult question – was the Tribunal correct in law to read section 24 of the ASPA as importing, by implication, the three-part test derived from Coco v Clark?
Carnwath LJ sided with the lower court, reiterating the temporal distinction to be made between section 24 of the ASPA, which focuses on the circumstances at the point when the information is ‘given’, and section 41 of the FOIA, which focuses on the circumstances at the point of disclosure. The Court of Appeal viewed section 24 of the ASPA as demanding a subjective inquiry into the intentions of the information provider and the knowledge of the receiver and saw no reason to import an objective test derived from the common law of confidentiality. By contrast with the Coco v Clark test, which was constructed to balance competing commercial interests, the Court noted that the ASPA ‘is concerned with relations of citizen and state’. It found nothing in either the text of the ASPA or that statute’s legislative history to justify limiting the scope of the protection it afforded to the citizen by reference to any more general interest in public information (such as that later embodied by the FOIA).
Despite its affirmation of the ICO’s decision that the Home Office had not acted improperly, the Court expressed dissatisfaction with the clash between the ASPA and the scheme of the FOIA and appeared to give support to a further review of section 24 of the ASPA.
Leave to appeal to the House of Lords was refused.
The decision in the BUAV case clearly has an effect on the FOIA regime beyond the confines of the ASPA. At a political level, the case could provide an impetus for another look at the operation of some of the retained statutory prohibitions, particularly where the threat of criminal sanctions looms over officials charged with accurately determining their scope. As for the courts, the line adopted by the High Court, and followed on appeal, demonstrates that there is a limit to judicial willingness to support an expansive approach to the freedom of information regime. The High Court was also keen to remind the Tribunal of the ‘need to think long and hard before deciding to step in (where legislators have hitherto “feared to tread”)’. Eady J invoked Lord Lowry’s observations in C v DPP  1 AC 1 on judicial navigation in the absence of clear guidance from the legislature, notably that ‘caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated, while leaving the difficulty untouched’.
It is possible to regard the courts’ rejection of a purposive interpretation of the relevant statutory prohibition as an indication that the landscape under the Tribunal may have shifted too far in favour of open government. It will be interesting to monitor whether this sentiment extends beyond the application of the section 44 of the FOIA exemption. Further, the rejection by the High Court (apparently with the Court of Appeal’s approval) of an unquestioning adherence to the formula for the law of confidence established in Coco v Clark could conceivably have implications for the future treatment of confidentiality under section 41 of the FOIA.
To date, the practice in decisions involving actionable breach of confidence has been to rely heavily on Coco v Clark as the litmus test. It remains to be seen what approach the ICO and the Tribunal will take in response to comments made in the High Court and the Court of Appeal about this test’s limitations in the context of comparatively recent developments in the law of privacy. Certainly, a broader interpretation of the type of information that may be regarded as confidential would involve some reining in of the expansive approach that has arguably characterised the freedom of information regime to date.
This text is based on an article that was published in the September/October 2008 issue of Freedom of Information journal.
Sections 41 and 44 of the FOIA
Sections 41 and 44 are two of the eight absolute exemptions.
Section 41 – confidential information
Information obtained by a public authority from outside the
organisation is exempt from disclosure if disclosure would be an
actionable breach of confidence.
Section 44 – other legal prohibitions
Disclosures that are prohibited by other legal rules are exempt
from the FOIA.