Willow v The Information Commissioner Ministry of Justice

In a freedom of information balancing exercise, the likelihood of prejudice which engages an exemption remains relevant to the weight given to non-disclosure. It is not a threshold consideration that can then be ignored. The tribunal may assess predicted harm and benefit by reference to realistic possibilities and the material available to it, including material supplied during the Information Commissioner’s investigation. Because disclosure under the Freedom of Information Act 2000 is effectively to the world at large, the possible use of disclosed information by offenders is relevant. An unincorporated treaty such as the United Nations Convention on the Rights of the Child has no direct effect in domestic law. It may assist statutory interpretation where legislation is ambiguous, guide the common law, or inform interpretation of Convention rights. Where the statutory meaning is clear, it is unnecessary to use it to define the public interest, although children’s interests remain relevant to the balance.

Carolyne Willow sought disclosure under the Freedom of Information Act 2000 of the unredacted Minimising and Managing Physical Restraint training manual used in secure training centres and juvenile young offender institutions. The Ministry of Justice refused disclosure, relying principally on section 31(1)(f), and the Information Commissioner upheld that decision.

The First-tier Tribunal dismissed the appeal. It accepted that disclosure was likely to prejudice security and good order and concluded that the public interest favoured withholding the manual, particularly because it was also relevant to older and potentially violent detainees. The Upper Tribunal dismissed a further appeal on the grounds of irrationality and inadequate reasons, and rejected an argument based on article 3(1) of the United Nations Convention on the Rights of the Child. The central issues before the Court of Appeal were whether those conclusions involved an error of law and whether article 3(1) affected the statutory public-interest assessment.

Sir Brian Leveson P gave the judgment, with McCombe LJ and Newey LJ agreeing.

1. Appeal dismissed. The decisions of the Information Commissioner, the First-tier Tribunal and the Upper Tribunal were rational, reasonable and consistent with the applicable freedom of information principles.
2. Under section 31(1)(f) of the Freedom of Information Act 2000, once likely prejudice to the maintenance of security and good order is established or conceded, the features supporting that conclusion remain relevant to the public-interest balance. They may make it more difficult, though not impossible, to conclude that the countervailing case for disclosure is so slight that refusal is irrational or perverse.
3. The tribunal was entitled to consider the whole evidential material available from the Information Commissioner’s investigation, including the manuals, correspondence and written evidence. Predictions of disclosure consequences are permissible: actual harm and benefit include the risk of actual harm and a real chance of benefit, assessed as realistic possibilities. The applicant- and motive-blind operation of FOIA means that disclosure would be to any requester, including offenders and associates.
4. The First-tier Tribunal’s concise reasons were adequate. Its focus on the use of the MMPR in young offender institutions, the older population, the capacity for more dangerous and violent behaviour, and the similarity with the adult Use of Force Manual provided a rational basis for preferring non-disclosure. Transparency and public confidence were relevant but limited by the information already in the public domain. Independent review did not require disclosure to the world at large, since a reviewer could obtain the manual where necessary.
5. The UNCRC is an unincorporated treaty and does not itself create domestic legal rights or obligations. Article 3(1) may be relevant where statutory meaning is genuinely ambiguous, may guide development of the common law, or may inform application of the ECHR through the Human Rights Act 1998. The phrase public interest in section 2(2)(b) was clear and did not require Article 3(1) to define it. Nevertheless, children’s interests were plainly central to the decision, including the interests of children who might be protected by effective restraint.

The appeal was dismissed in its entirety.

• Court of Appeal (Civil Division): appeal dismissed on 22 November 2017.
• Upper Tribunal (Administrative Appeals Chamber): Upper Tribunal Judge Kate Markus Q.C. dismissed the appeal on 24 March 2016 and refused permission to appeal.
• First-tier Tribunal: appeal from the Information Commissioner’s decision was dismissed on 30 November 2014.
• Information Commissioner: complaint against the Ministry of Justice’s refusal of disclosure was rejected following investigation.