IAB & Ors, R (on the application of) v Secretary of State for the Home Department & Anor

In judicial review proceedings, a public authority should disclose documents in a way that fulfils the duty of candour, which is an obligation to explain the reasoning underlying the decision under challenge. Names and other information in disclosable documents should not be routinely redacted merely because they are irrelevant to a pleaded ground. Relevance-only redaction should be confined to clear cases where the material does not concern the decision under challenge, absent a good reason such as confidentiality. A redacted document should ordinarily be accompanied, at the point of disclosure, by a concise explanation of the redaction. Claims to legal professional privilege require sufficient evidence and cannot ordinarily be established by bare assertion or unexplained inspection of the redacted material.

The claimants brought judicial review proceedings concerning draft regulations intended to exclude certain asylum-seeker accommodation from the houses in multiple occupation licensing scheme. The judgment concerned disclosure made by the Secretaries of State before detailed grounds of defence and evidence had been filed.

The court determined whether names of civil servants and contractors could routinely be redacted, whether legal professional privilege justified redaction of an email, whether a passage in a ministerial letter was irrelevant, and what procedure should govern disclosure of redacted documents in judicial review proceedings.

1. Routine redaction of names. The Secretaries of State’s application to redact names from disclosed documents was refused. The duty of candour requires public authorities to provide full and accurate explanations of the facts and reasoning relevant to the decision under challenge. It is an obligation of explanation, not simply disclosure. Where documents are disclosed to evidence the decision-making process, anonymising the persons sending, receiving or preparing them may materially impair intelligibility and the court’s understanding.
2. Relevance-only redaction should, absent good reason to the contrary, be confined to clear cases where the redacted information does not concern the decision under challenge. Names of civil servants, including those outside the Senior Civil Service, and names of contractor personnel should not be redacted routinely. Generalised concerns about confidentiality, harassment or a chilling effect, unsupported by compelling evidence, did not justify a blanket approach.
3. Legal professional privilege. Redaction of the email dated 13 January 2023 was refused. The communication was between non-lawyers, the claim to litigation privilege was insufficiently evidenced, and the asserted common-interest privilege was unexplained. The court declined to inspect the redacted text because privilege depended on the circumstances in which the communication was made, which the text could not establish. Inspection must still be approached with caution.
4. Relevance redaction. Redaction of the disputed passage in the Levelling Up Secretary’s letter was also refused. The characterisation of the passage as personal political views did not establish irrelevance. It might record doubts or concerns about the proposed decision and could therefore assist in understanding the decision-making process.
5. Procedure. A party disclosing a redacted document in judicial review proceedings should explain the reason for redaction when the document is disclosed. A single-word label will rarely suffice. Where the document is exhibited to a witness statement, the explanation should ordinarily be given in that statement; claims based on legal professional privilege will usually be explained by the solicitor with conduct of the case.
6. All affected documents were ordered to be re-served without redaction.

This was a first-instance judicial review disclosure decision in the Administrative Court. The judgment does not state any prior appellate decision in the same proceedings.