Browning v The Information Commissioner & Anor

In an appeal under the Freedom of Information Act 2000, the First-tier Tribunal may exclude both a party and that party’s legal representative from a closed hearing. Exclusion is permissible unless the tribunal cannot otherwise examine and test the closed material, give adequate reasons, and perform its investigatory function fairly and effectively.

The decision is fact-sensitive. “Exceptional” predicts how rarely counsel may need admission; it is not a separate substantive threshold. When exclusion occurs, the tribunal must minimise disadvantage through maximum possible candour before and after the closed session and in its reasons.

Information obtained from another person may retain that character for the section 41 confidentiality exemption despite being processed or recorded differently by the public authority.

A journalist requested from the Department for Business, Innovation and Skills the identities of companies which had applied for export licences to Iran. The Department relied on the confidentiality and commercial-prejudice exemptions in sections 41(1) and 43(2) of the Freedom of Information Act 2000. The Information Commissioner initially ordered disclosure but later supported the Department after seeing further material.

The First-tier Tribunal heard evidence from two exporters in a closed session from which both the journalist and his counsel were excluded. It allowed the Department’s appeal. The Upper Tribunal dismissed the journalist’s appeal in [2013] UKUT 236 AC.

The principal issue in the Court of Appeal was whether the governing legislation and procedural rules lawfully permitted the exclusion of a party’s legal representative, notwithstanding an offered confidentiality undertaking.

1. Appeal dismissed. The First-tier Tribunal’s procedural rules were within the powers conferred by section 22 and Schedule 5 to the Tribunals, Courts and Enforcement Act 2007. Rules 5, 14 and 35 of the First-tier Tribunal (General Regulatory Chamber) Rules 2009, properly construed, permitted the tribunal to exclude both the appellant and his legal representative from part of the substantive hearing.

2. The principles of open justice and natural justice are fundamental. A closed hearing is a particularly serious derogation because a party cannot know and challenge the whole case. Those principles did not compel a construction forbidding the exclusion of counsel. Appeals under the Freedom of Information Act 2000 have distinctive investigatory features, including the tribunal’s expertise, the Information Commissioner’s role, and the risk that disclosure during the proceedings would defeat the statutory inquiry itself.

3. The governing inquiry is whether, without admitting the excluded party’s representative, the tribunal can examine and test the closed material, provide adequate reasons, and perform its investigatory function fairly and effectively, having regard to the competing rights and interests. Admission of counsel subject to confidentiality may create professional and practical difficulties and risks of indirect disclosure. The description of cases requiring admission as “exceptional” was predictive, rather than a separate substantive test. Each case must be decided in its particular factual context.

4. When both party and representative are excluded, the tribunal must minimise the resulting disadvantage. It should explain as much as circumstances permit about the need for the closed session, disclose as much as possible afterwards so that submissions can be made, and adopt the same maximum possible candour in its reasoned decision. Those safeguards were achieved in this case.

5. Permission was refused on the remaining grounds. Section 41(1) concerns information rather than the form in which it is communicated or held. Information obtained from another person does not lose that character merely because the public authority processes or records it differently. The challenge to the finding of commercial prejudice under section 43(2) was unarguable because the finding was justified by the open and closed evidence. The Upper Tribunal was also entitled to sever an immaterial error concerning exporters’ candour because the point was ancillary and might not have formed part of the dispositive reasoning.

1. Court of Appeal (Civil Division): In [2014] EWCA Civ 1050 , dismissed the appeal and upheld the lawfulness of excluding both the appellant and his counsel from the closed session. Permission was refused on the remaining proposed grounds.
2. Upper Tribunal (Administrative Appeals Chamber): In [2013] UKUT 236 AC, dismissed the journalist’s appeal and upheld the First-tier Tribunal’s approach to closed material.
3. First-tier Tribunal: Allowed the Department’s appeal from the Information Commissioner. It accepted evidence heard partly in closed session and held that the requested information was confidential and that disclosure would prejudice commercial interests.
4. Information Commissioner: Initially required disclosure, but changed position after seeing further material and supported the Department before the First-tier Tribunal.