The Public Interest Test under EIR and FOI: Weighting the Arguments

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A recent decision of the Upper Tribunal, under the Freedom of Information Act 2000 (FOI), provides a useful reminder of what a public authority needs to do when applying the public interest test.

FOI practitioners will be familiar with conducting public interests tests when considering whether to apply one of the qualified FOI exemptions and the exceptions in the Environmental Information Regulations 2004 (EIR). Both sets of exemptions/exceptions require a public authority to weigh the public interest in maintaining the exemption against the public interest in disclosure. A public authority can only withhold the information if the public interest in maintaining the exemption outweighs the public interest in disclosure.

Public interest arguments in favour of withholding the information must relate specifically to that exemption. In addition, the public authority must consider all the circumstances of the case. This means that two identical requests to different public authorities may result in different disclosure decisions if the circumstances of the case are different.
Practitioners should be particularly cautious about relying on other cases to help decide where the public interest lies and must not apply blanket refusals to certain types of information. In one of its earlier decisions, the First Tier Tribunal (Information Rights) made it clear that a public authority may have a general policy that the public interest is likely to be in favour of maintaining an exemption in respect of a specific type of information, but any such policy must be flexibly applied, with genuine consideration being given to the circumstances of the particular request (see Guardian Newspaper and Heather Brooke v Information Commissioner (EA/2006/0011)).

Essentially, this ‘weighting’ exercise requires a public authority to consider, in the specific circumstances of each case, whether it is in the public interest to disclose the information or to withhold it. Arguments against disclosure must focus on the factors associated with the particular exemption in question and the interest it seeks to protect (see Oxford City Council and Hogan v Information Commissioner EA/2005/0026). Where, an exemption is about prejudice (under FOI) or adverse effect (under the EIR) then there is an inherent public interest in avoiding that prejudice or adverse effect.

The Ryan Case

The recent Upper Tribunal decision, in Ryan v Information Commissioner [2020] UKUT 54 (AAC), involved a request by Mr Ryan to Kent County Council for information about the Council’s negotiations with Tesco in relation to the sale of council land to Tesco in 2004. Mr Ryan wanted to see the correspondence between the Council, the Council’s agent and Tesco. The land in question was a two-acre site that included an Adult Education Centre and car park. As part of the sale contract, Tesco agreed to provide a shop unit for community use to be leased back to the Council at a nominal rent, with the Council paying the costs of constructing the building. However, in 2015 Tesco decided that it would not proceed with its development plans and subsequently sold the land on to a company for residential development. Consequently the community lost the use of the adult education centre that had to be relocated elsewhere. The health and social care centre that was supposed to have been based in the community shop was forced to move into a smaller space inside a library. Mr Ryan argued that there was a  strong public interest in knowing what the Council’s negotiation strategy had been, since the failure of the negotiations with Tesco had clearly caused “ongoing pain” to the community through the loss of these community services.

Following an investigation by the Information Commissioner’s Office (ICO), the Council disclosed the majority of the information requested but continued to withhold one section of a document (“Negotiating Strategy”) relating to its negotiations with Tesco. The Council claimed that disclosure would prejudice its commercial interests and used EIR regulation 12 (5)(e) to withhold this one section. This permits a public authority to refuse a request for environmental information to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest.

In her Decision Notice (FER0713831) the Commissioner concluded that disclosing the requested information would highlight a tactic used by the council in the negotiations which might well be used in similar circumstances in the future. She decided that the exception was engaged and that the public interest favoured withholding this one piece of information.

The First Tier Tribunal (Information Rights) agreed that the exception was engaged (Ryan v Information Commissioner EA/2018/019). Although the negotiations with Tesco had ended some time ago, the Tribunal decided that disclosure of the relevant tactic may lead parties considering future negotiations with the Council to change their negotiating strategy and that the confidentiality of this commercial information would be adversely affected by disclosure. The Tribunal decided that there was a significant public interest in understanding what happened with the deal and why attempts to obtain the adult education centre and the health and social care centre failed. Disclosure of information about how and why the situation had happened would further the public interest in holding the Council to account for its conduct of this matter and could help to ensure that the same thing does not happen again. On the other hand the Tribunal considered that there was a clear public interest in allowing the Council to approach negotiations on a level playing field; that disclosure would the undermine its negotiating position in future similar negotiations and this would  prevent it from obtaining the best value in its land deals, with a consequential effect on the public purse. On balance the Tribunal decided that taking into account the specific information, the public interest arguments and the amount of information that had already been disclosed, that the public interest favoured withholding the small amount of information regarding negotiating tactics. In particular the Tribunal noted that the disputed information would not greatly further the public’s understanding of what had happened, and disclosure would cause substantial damage to the public interest.

On appeal the Upper Tribunal decided that the First Tier Tribunal’s approach was wrong. The latter had not taken into account the content of the disputed information, which in the Upper Tribunal’s view contained nothing “unique or unusual”. The Upper Tribunal stated that the information was about the sort of advice that a local authority would generally be given in the circumstances and that it was also the sort of advice that would be anticipated by the other side. In its view disclosure would not adversely affect the Council in the ways identified by the First Tier Tribunal. However, the Upper Tribunal has remitted the case back to a differently constituted First Tier Tribunal for reconsideration of the public interest.

In doing this the Upper Tribunal, referring to one of its earlier decisions (FCO v Information Commissioner and Plowden [2013] UKUT 275 (AAC), made some important observations about the public interest test:

  1. It is important to look at the disputed information and consider whether its disclosure would further the public interest. In this case the Upper Tribunal suggests that if the information regarding tactics is well known to anyone advising on development issues, disclosure would not do much to further the public interest in disclosure. If the disputed information is not particularly informative then it is important to explain what the public interest in disclosure is that will outweigh the public interest in maintaining an exemption.
  2. The test for the balance of public interests is a comparative one; so that the weaker the case for one side, the less public interest is needed on the other side to outweigh it.
  3. Under the EIR it is necessary to show how the presumption in favour of disclosure has been factored into the consideration. This applies to public authorities, the Commissioner, and the First Tier Tribunal.

This case concerned a qualified exception under EIR and therefore technically only provides a precedent in relation to that legislation. When a public authority is applying one of the EIR exceptions it must show how it has factored the presumption in favour of disclosure into its considerations. A public authority would be well advised to explain how it has done this in the Refusal Notice.

The FOI does not include an expressly stated presumption in favour of disclosure, so this aspect of the judgment has no bearing on it. However, this case provides some useful lessons for practitioners when dealing with qualified exemptions under the FOI. The first two observations listed above have equal force when dealing with qualified exemptions under the FOI and serve to remind us that it is always necessary to consider whether and how disclosure of the disputed information will further the public interest, and to deal with each case on its own set of facts.

This and other developments will be discussed in our FOI and EIR workshops which are now available as an online option. If you are looking for a qualification in freedom of information, our FOI Practitioner Certificate is ideal.

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Act Now Training Ltd specialise in information law. We have been providing training and consultancy services globally for over 17 years. We have an extensive GDPR and FOI course programme from live and recorded webinars, accredited foundation through to higher level certificate courses delivered throughout the country or at your premises.
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