Corporate Officer of the House of Commons v The Information Commissioner & Ors

Section 19 publication schemes under the Freedom of Information Act 2000 do not restrict the separate right of access under section 1. Public authorities, including the House of Commons, cannot create reasonable expectations that information will be withheld contrary to the Act. Where disclosure involves personal data, the court must balance the public interest in disclosure against the data subject’s rights and legitimate interests. Necessity requires a pressing social need and proportionate, fairly balanced means. The assessment is fact-sensitive. On an appeal on a point of law, the High Court must not substitute its own assessment for that of the specialist tribunal unless the tribunal’s decision is legally flawed.

The Corporate Officer of the House of Commons appealed under section 59 of the Freedom of Information Act 2000 against a decision of the Information Tribunal concerning requests for detailed information about Members’ Additional Costs Allowance claims.

The Information Commissioner had ordered disclosure of annual totals broken down by expense category. The Tribunal dismissed the House’s appeal and substantially allowed the applicants’ cross-appeals, ordering wider disclosure, subject to limited exceptions concerning security information and particular security risks. The central issues were whether Members had reasonable expectations limiting disclosure, whether addresses connected with allowance claims should be withheld, and whether the Tribunal had erred in law.

1. Appeal dismissed. The appeal under section 59 of the Freedom of Information Act 2000 was confined to points of law. It was not a rehearing or an appeal on the merits. The High Court could interfere only if the Tribunal’s decision was legally flawed.
2. The Tribunal had expressly considered and rejected the submission that Members reasonably expected only information contained in the publication scheme to be disclosed. Its conclusion was supported by the statutory scheme, the relevant correspondence and the surrounding evidence. No error of law was shown.
3. A publication scheme under section 19 was distinct from the general right of access under section 1. It expanded rather than restricted access rights. Members could not reasonably expect to contract out of legislation applying to the House of Commons or to be exempted from it without amendment or repeal.
4. The House of Commons was expressly subject to the Act. Article 9 of the Bill of Rights 1689 was not engaged because the proceedings concerned the interpretation and application of legislation, not scrutiny of or interference with parliamentary proceedings. No privilege certificate had been issued under section 34.
5. The disclosure of addresses constituted processing of personal data. The relevant question under the first data protection principle and paragraph 6(1) of Schedule 2 to the Data Protection Act 1998 was whether disclosure was necessary for legitimate interests and unwarranted by prejudice to the rights and legitimate interests of the data subjects. Necessity required a pressing social need, proportionate means and a fair balance between the competing interests, applying the approach explained in The Sunday Times v United Kingdom (1979) 2 EHRR 245.
6. The Tribunal was entitled to conclude, on the evidence concerning the deeply flawed allowance system and serious deficiencies in accountability, that the public interest justified disclosure. There was no general rule requiring addresses to be withheld. The Tribunal had nevertheless allowed appropriate exceptions for security measures and particular security risks. A future change in the oversight system or relevant evidence could justify a different conclusion.

• Information Tribunal: By decision dated 26 February 2008, the Tribunal dismissed the House of Commons’ appeal from the Commissioner and effectively allowed the applicants’ cross-appeals, ordering wider disclosure subject to limited exceptions.
• High Court (Administrative Court): The Corporate Officer’s appeal under section 59 of the Freedom of Information Act 2000 was dismissed.