In an unreported judgment, a campaign group seeking disclosure of two Brexit economic impact papers from the government failed to demonstrate that its request was exceptional so that it justified a departure from the normal process of obtaining information held by public authorities under the Freedom of Information Act 2000 (FoIA). This provides useful guidance as to the extent any free-standing obligation exists on public authorities to disclose information outside of the regime envisaged under FoIA.
The claimant campaign group sought permission to judicially review the decision of the Secretary of State to withhold two documents concerning the likely consequences of the UK’s departure from the European Union. The Secretary of State had treated the requests as falling under FoIA. The campaign group argued that the requests were made under the common law and not under FoIA and that the case involved exceptional circumstances such that FoIA was an unsuitable alternative remedy given that the request under FoIA could not be resolved until Brexit negotiations were expected to conclude in October 2018. The campaign group also argued the case was exceptional due to the strength of the case and the strong public interest in its outcome.
The FoIA regime is somewhat unsatisfactory not only because it includes a number of potentially substantial exemptions but also because of the timetable for disclosure and appeal (which at least in the first instance requires making a complaint to the Information Commissioner’s Office) which is potentially rather slow. For these reasons, an alternative free-standing means of obtaining disclosure of information from public authorities in law would be attractive. Moreover, the judgment of the Supreme Court in Kennedy v The Charity Commission  UKSC 20 somewhat left the door ajar to such a free-standing legal right, potentially based on Article 10 of the European Convention of Human Rights and recent decisions of the Strasbourg court.
In the Good Law Project case, Mr Justice Supperstone held the Secretary of State was correct to treat the claimant’s request as falling under FoIA. FoIA was the mechanism established by Parliament for seeking disclosure of information from public authorities. Whether disclosure should be ordered outside of the FoIA regime depended on the public interest balance. He determined there was nothing fundamentally unfair about the time frame imposed by FoIA. He was not persuaded about the strength of the case or that the need for urgency amounted to exceptional circumstances which justified departure from the prescribed statutory mechanism in this case. It transpired that the claimant had known about the first document since December 2016 and the second document since June 2017. The claimant gave notice in October 2017 that it would challenge the refusal for disclosure but did not ask the Secretary of State to conduct an internal review of her decision. The claimant did not file its claim for judicial review until the end of 2017. Mr Justice Supperstone held that FoIA was capable of dealing with cases that required expedition in any event and was, therefore, a suitable alternative remedy in the instant case.
From the limited extracts of the judgment available at the time of writing, it is not clear to what extent the Article 10 argument advanced in Kennedy was addressed.
The decision highlights the difficulties faced by claimants seeking urgent disclosure from a public authority. It seems that – absent the context of on-foot legal proceedings, for example a judicial review of a public authority, where different disclosure obligations may arise- FoIA (and its numerous exemptions) will be the method by which such disclosure requests are governed except in exceptional circumstances. It is not clear what ‘exceptional circumstances’ entails but it seems from this decision that urgency will not fall within that category, particularly in circumstances where the claimant has not followed the available procedure to seek an immediate internal review of the decision made and has not pursued its challenge for judicial review particularly timeously.