Home Office & Anor v The Information Commissioner

Requests for information about the handling of earlier information requests receive no special status under the Freedom of Information Act 2000. They must be assessed under the ordinary statutory exemptions and the public interest test.

When applying the public interest test, the decision-maker must weigh the aggregate public interest in maintaining the exemption against the aggregate public interest in disclosure. The exercise is a broad evaluative judgment. Generalised factors are not inherently entitled to less weight than specific factors, although their weight depends on the evidence and circumstances. Enforcement and review mechanisms supplement, rather than replace, the core right to request information.

The Home Office and Ministry of Justice appealed against a decision of the Information Tribunal concerning a request for internal communications about 48 earlier information requests. The request was described within government as a “meta-request”.

The Home Office relied principally on the qualified exemption in section 36(2) of the Freedom of Information Act 2000. The Commissioner accepted that the exemption was engaged but concluded that the public interest favoured disclosure. The Tribunal upheld that conclusion on a preliminary issue, while permitting reliance on the exemption relating to personal information.

The appeal concerned the proper approach to the public interest balancing exercise and whether the Home Office could rely at a late stage on other exemptions.

1. Meta-requests. Information about the handling of earlier requests is not accorded special treatment under the Freedom of Information Act 2000. It must be considered under the ordinary statutory scheme.
2. Public interest balancing exercise. Applying [2009] EWCA 90 (Civ), the Tribunal had to assess whether the aggregate public interest in maintaining the exemption outweighed the aggregate public interest in disclosure. The exercise required a broad judgment, while recognising that the aggregate was composed of the individual factors. A generalised factor was not inherently less significant than a specific factor. The Tribunal was entitled to reject the claimed effects on officials’ candour and resource diversion on the evidence before it.
3. Review mechanisms. The mechanisms for internal review, complaints to the Commissioner and appeals to the Tribunal supplement the core right under section 1(1). They do not operate as substitutes for that right. A request intended to discover how an earlier request was handled was therefore not necessarily an impermissible circumvention of those mechanisms.
4. Ministerial opinion. The Tribunal was not required to defer to the views of Ministers or civil servants when assessing the effects identified in section 36(2). It could use its own specialist expertise to evaluate the evidence. In this case, the Ministers’ letters showed that they had proceeded on the basis that disclosure “would”, rather than merely “would be likely to”, produce the relevant effects.
5. Outcome. The appeal was allowed only in part. The Tribunal’s order requiring disclosure of all the requested information was set aside to the extent that the information might fall within the other exemptions identified by the Home Office, or related to requests not yet answered. The matter was remitted to the Tribunal to determine whether those exemptions applied and, where qualified exemptions applied, to conduct the public interest test. The court declined to determine the wider academic question whether late reliance on an exemption was a matter of right or discretion.

• High Court (Administrative Court): The appeal from the Information Tribunal was allowed in part. The disclosure order was set aside in part and the matter was remitted to the Tribunal.