Willow v Information Commissioner & Anor

When assessing the public-interest balance for a qualified exemption under the Freedom of Information Act 2000, a tribunal must identify and assess the real risks and benefits of disclosure. It may do so by predicting realistic consequences; actual past harm is not required. Where likely prejudice is conceded, the appellate issue is the tribunal’s evaluative weighing of the competing public interests.

Article 3.1 of the UN Convention on the Rights of the Child does not require an unambiguous statutory scheme to be construed consistently with that Convention where no Convention right is engaged and the domestic legislation neither incorporates nor reflects the article.

The appellant sought an unredacted copy of the Minimising and Managing Physical Restraint manual used in Young Offender Institutions and Secure Training Centres. The Ministry of Justice withheld parts of it. The Information Commissioner decided that the material was exempt under section 31(1)(f) of the Freedom of Information Act 2000 and that the public interest favoured withholding it.

On 1 December 2014, the First-tier Tribunal dismissed the appellant’s appeal. She appealed on the grounds that its public-interest decision was irrational or inadequately reasoned, and that it had failed to treat children’s best interests as a primary consideration under article 3.1 of the UN Convention on the Rights of the Child.

1. Appeal dismissed. The First-tier Tribunal made no error of law. Its reasons adequately identified and resolved the matters vital to its conclusion, and its decision was not irrational.

2. In a qualified-exemption case, the public-interest assessment requires a sufficiently detailed identification and examination of the harm or prejudice and the benefit that disclosure would, would be likely to, or might produce. That does not require proof that harm has already occurred. The assessment commonly involves predictions of risk, and actual harm includes a risk of actual harm or a real chance of benefit.

3. The appellant had accepted that disclosure was likely to prejudice security and good order. She could not therefore challenge on appeal the existence of that likely prejudice. The First-tier Tribunal was entitled to give decisive weight to the realistic risk that older detainees and adult prisoners could use the disclosed techniques to develop countermeasures, with consequential risks to good order and safety. It also gave adequate reasons for according limited weight to further transparency, given the extensive information already published and the arrangements for supervision and recording of incidents.

4. Article 3.1 of the UN Convention on the Rights of the Child was not applicable. Although the Convention binds the United Kingdom internationally, it is not generally part of English law. It may assist where domestic legislation is ambiguous, in developing the common law, or through the application of a Convention right. The relevant provisions of the Freedom of Information Act 2000 were unambiguous, no European Convention on Human Rights issue arose, and the Act did not incorporate or reflect article 3.1.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and upheld the First-tier Tribunal’s decision.
• First-tier Tribunal: on 1 December 2014 dismissed the appeal from the Information Commissioner’s decision.
• Information Commissioner: on 27 March 2014 held that the requested information was exempt under section 31(1)(f) of the Freedom of Information Act 2000 and that the public interest favoured withholding it.