Nick Martin-Clark v The Information Commissioner

A tribunal determining whether information is exempt under section 41 of the Freedom of Information Act 2000 must assess whether the statutory conditions are met for the information concerned. It need not give a word-by-word account, but its reasons must show in broad terms that it applied each limb of the actionable-breach-of-confidence test to the relevant categories of information.

The overriding objective does not permit a tribunal to treat a document as wholly exempt because a granular assessment would be disproportionate. Non-exempt information does not become exempt because it appears in a document containing exempt material. The discretion under section 50(4) arises only after non-exempt information has been identified.

The appellant sought the full report of an audit into the Haringey Leaseholders’ Association and documents and interview notes on which it was based. Homes for Haringey withheld the material principally under sections 40 and 41 of the Freedom of Information Act 2000. The Information Commissioner’s decision notice upheld that position.

The First-tier Tribunal confirmed the decision notice in case EA/2019/0066. It accepted that interview material had been provided in confidence and held that the report could be withheld as a whole because non-confidential material was peripheral and a line-by-line exercise was not proportionate.

On appeal, the Upper Tribunal considered whether that approach lawfully applied section 41, whether non-exempt information could be withheld without analysis, and whether the First-tier Tribunal’s reasons were adequate.

1. Appeal allowed. The First-tier Tribunal’s decision involved material errors of law. It was set aside and the appeal was remitted for a fresh determination by a differently constituted First-tier Tribunal.

2. Section 41(1) of the Freedom of Information Act 2000 required the tribunal to determine both whether the information had been obtained from another person and whether disclosure would constitute an actionable breach of confidence. The latter inquiry required application of all three elements in Coco v A.N. Clark (Engineers) Ltd, [1968] FSR 415: confidential quality, communication in circumstances importing confidence, and unauthorised use to the communicator’s detriment.

3. The First-tier Tribunal was entitled to assess meaningful categories of documents rather than each document individually. It was also entitled to find that interviewees had received assurances of confidentiality. But its reasons did not show that it had assessed the necessary quality of confidence or the remaining elements of the Coco test for the withheld categories. Its conclusion rested substantially on the fact that information had been given in confidence.

4. The overriding objective in rule 2 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 governs the exercise and interpretation of the procedural rules. It does not introduce a proportionality qualification into the statutory exemptions. The First-tier Tribunal therefore erred by declining to assess the exemptions on the ground that granular analysis would be disproportionate, and separately erred by relying on the public authority’s summary report as having effectively done that work.

5. Whether information is exempt is binary. Information which does not satisfy an exemption cannot be withheld merely because it forms part of a document containing exempt information. Section 50(4) may permit a discretion not to require steps concerning information already found to be non-exempt, but it cannot justify avoiding the prior assessment needed to identify that information.

6. The remaining grounds did not require determination. Fresh findings were required, including on the scope of the requests and the application of section 41 to the withheld material.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision for material error of law, and remitted the case for reconsideration: [2023] UKUT 245 (AAC).
• First-tier Tribunal (General Regulatory Chamber): confirmed the Information Commissioner’s decision notice concerning the requested material, under case number EA/2019/0066.