Keane v IC & Ors

A qualified exemption under the Freedom of Information Act 2000 must not be treated as absolute. The public-interest exercise requires the tribunal to identify the extent to which the interests underlying the exemption arise on the particular facts and then assess their weight.

On an appeal on a point of law, the Upper Tribunal reads the First-tier Tribunal’s reasons as a whole. Imperfect drafting, or disagreement with the weight given to relevant considerations, does not establish legal error. A qualified national-security exemption may carry substantial weight, but the balance remains fact-sensitive.

Keane v Information Commissioner and Others concerned a historian’s request for the names of paid police informants in National Archives records relating to Irish secret societies between 1890 and 1910.

The Information Commissioner upheld the Home Office’s refusal. The First-tier Tribunal, by a majority, dismissed the appeal under sections 24(1) and 38(1) of the Freedom of Information Act 2000, holding that the public interest favoured withholding the names. The appellant challenged the majority’s public-interest balancing exercise, contending that it had converted qualified exemptions into absolute ones.

The Upper Tribunal considered whether the First-tier Tribunal had made a material error of law in its application of that balance.

1. Appeal dismissed. The First-tier Tribunal’s decision involved no material error of law and remained in force.
2. The Upper Tribunal accepted that the First-tier Tribunal’s treatment of the health-and-safety exemption in section 38(1) was open to criticism. It had not expressly found that the exemption was engaged, and the evidence appeared capable at most of showing a conceivable risk rather than the real and significant risk required by the phrase “would be likely to”. Those concerns were not material because section 24(1), the national-security exemption, was properly engaged and independently sustained the result.
3. The First-tier Tribunal’s reasons had to be read as a whole. Its references to caution and to risks which “must prevail” did not show that it had prejudged the public-interest balance or treated either qualified exemption as absolute. At most, they reflected loose drafting and foreshadowed its later evaluation.
4. The Tribunal had identified the competing considerations and was entitled to give substantial weight to the national-security interest in preserving the ability to recruit and retain informants. The appellate challenge was, in substance, an invitation to reweigh those considerations, which was outside an appeal confined to error of law.
5. The age of historical information does not impose a fixed disclosure point. The point at which public interests favouring disclosure outweigh the interests supporting confidentiality is a question of fact and judgment in the individual case. On these facts, the First-tier Tribunal was entitled to regard records concerning modern Irish history and agencies still operating today differently from records concerning seventeenth-century informants.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal decision was held not to involve an error of law ([2016] UKUT 461 (AAC)).
• First-tier Tribunal (General Regulatory Chamber) (Information Rights): by a majority, dismissed the appeal from the Information Commissioner’s decision notice and upheld withholding under sections 24(1) and 38(1) of the Freedom of Information Act 2000 ([2015] UKFTT EA 2015 0013 GRC).