Edward Carter v Information Commissioner & Anor

For an exemption based on the predicted prejudice resulting from disclosure, a tribunal must assess all materially relevant evidence bearing on the prediction. That includes evidence of what happened when comparable information was previously disclosed.

It is an error of law to ignore such evidence or consider it only at the later public-interest balancing stage. The predictive question whether the exemption is engaged is distinct from the evaluative question of how much weight competing public interests should receive.

The claimant made identical Freedom of Information Act 2000 requests to Westminster City Council and the City of London Corporation for lists of companies paying business rates and the hereditaments for which they were liable.

The First-tier Tribunal accepted that the law-enforcement exemption in section 31(1)(a) was engaged and upheld the refusal after applying the public-interest test. It considered sections 12 and 41, and left section 14 undecided. The claimant appealed on a point of law concerning the tribunal’s assessment of evidence about comparable disclosures by other authorities and the authorities’ own earlier practice.

1. The First-tier Tribunal’s decisions involved an error of law and were set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007. The cases were remitted for rehearing by a differently constituted panel.

2. The tribunal had correctly directed itself that section 31(1)(a) requires consideration of whether disclosure would prejudice, or would be likely to prejudice, the prevention of crime. The relevant inquiry includes whether there is a causal relationship between disclosure and the claimed prejudice, whether the prejudice is real, actual or substantial, and whether the risk is more than hypothetical or remote.

3. The tribunal failed to apply that direction correctly. There was evidence of the actual effect of comparable disclosures, including disclosures by other local authorities and the City of London Corporation’s earlier publication of the information. That evidence was potentially relevant to the predictive assessment and could not be ignored.

4. The tribunal had to decide whether to accept the evidence, reject it, or assess its predictive value while nevertheless finding that section 31 was engaged. Its failure to explain what it made of the evidence was an error of law.

5. The public-interest balancing exercise under section 2(2)(b) could not remedy the omission. That exercise is evaluative, whereas the section 31 inquiry is predictive. The tribunal’s later assessment of the risks therefore did not determine whether it had first lawfully established that section 31 was engaged.

6. The possible application of sections 12, 14 or 41 meant that success on section 31, even after rehearing, would not necessarily result in disclosure.

• Upper Tribunal (Administrative Appeals Chamber): the First-tier Tribunal decisions dated 24 January 2024 were set aside for error of law under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007. The cases were remitted for rehearing by a differently constituted panel.
• First-tier Tribunal (General Regulatory Chamber): the appeals concerning the two Freedom of Information Act requests were decided on the basis of section 31; sections 12 and 41 were addressed contingently and section 14 was not decided.