Department of Health v The Information Commissioner & Anor

In a qualified-exemption case under the Freedom of Information Act 2000, the public-interest balance must be assessed by reference to the content of the particular information. There is no presumption in favour of disclosure. The decision-maker must identify the actual or likely benefits and harms of disclosure, assess their significance and likelihood, and perform an evaluative balance under section 2(2)(b). General transparency benefits may be relevant, but they must be connected to the information requested. Information is held by a public authority where there is an appropriate connection with the authority and its functions. A Ministerial diary maintained by a department may remain held by it after the Ministerial appointment ends, including as a potentially relevant historical record.

A journalist requested disclosure under the Freedom of Information Act 2000 of the Ministerial diary of the Secretary of State for Health for a specified period. The Department disclosed a redacted version. The Information Commissioner required disclosure of most of the withheld material.

The First-tier Tribunal substantially upheld that decision. The Upper Tribunal dismissed the Department’s appeal from that decision on 30 March 2015. The Department appealed to the Court of Appeal, challenging the public-interest balancing exercise and whether entries concerning non-Ministerial activities were information held by the Department.

1. Appeal dismissed. The Court of Appeal upheld the Upper Tribunal’s dismissal of the Department’s appeal from the First-tier Tribunal.
2. For a qualified exemption, section 2(2)(b) of the Freedom of Information Act 2000 requires a contents-based assessment of the competing public interests. There is no presumption in favour of disclosure. If the interests are evenly balanced, the public authority has not shown that maintaining the exemption outweighs disclosure. The relevant benefits and harms must be identified with appropriate detail and linked to the information in issue. The balancing exercise remains evaluative.
3. The First-tier Tribunal’s references to a general public interest in transparency did not invalidate its decision. Read as a whole, it identified eleven possible benefits of disclosure, most linked specifically to the diary, examined the evidence, assessed the claimed harms, and explained why the benefits outweighed the relatively modest likely impacts on the interests protected by section 35. No further explanation was required.
4. Whether information is held must be judged by reference to each entry or piece of information, and there must be an appropriate connection between it and the public authority. The diary was set up and maintained by the Department at its cost. While the Minister remained in office, it was held by the Department for its own purposes, even if personal or constituency entries were also held for the Minister. The end of the Ministerial appointment did not alter that position. The entries remained potentially relevant as a historical record.

• Court of Appeal (Civil Division): Appeal from the Upper Tribunal dismissed.
• Upper Tribunal (Administrative Appeals Chamber): The Department’s appeal from the First-tier Tribunal was dismissed on 30 March 2015.
• First-tier Tribunal (General Regulatory Chamber – Information Rights): The Information Commissioner’s decision requiring disclosure of most of the withheld diary information was substantially upheld on 17 March 2014.
• Information Commissioner: By decision dated 26 March 2013, the Department was required to disclose the majority of the withheld information.