FoI Tribunal gets it wrong

The High Court has ruled that the Information Tribunal misunderstood part of a Freedom of Information (FOI) Act request and failed to properly adjudicate other parts of it. The case must now be re-considered by the Tribunal.

When the Government passed the Financial Services and Markets Act in 2000 the then-Chancellor Gordon Brown declared that the law was compatible with the Human Rights Act.

Evan Owen wrote to the Treasury to ask to see the legal documentation on which that declaration was based. His request was made under the provisions of the FOI Act. The Treasury denied his request, saying that advice from Government advisors the Law Officers was exempt from disclosure under FOI. There is a provision in the FOI Act that exempts information subject to legal professional privilege.

The Information Commissioner's Office (ICO), agreed that the advice was exempt from disclosure. It also ruled, though, that the Treasury should disclose whether or not Law Officers' advice was held by it. It did not have to disclose what the advice was, only whether or not it had been given, the ICO said.

The Treasury appealed that decision to the Information Tribunal, which backed the ICO's ruling, and to the High Court. It said that even just the fact of whether or not advice had been sought or given could be politically sensitive and damage the confidentiality necessary for legal advice to be effective.

The Court found that the Tribunal had had a "fundamental misunderstanding" about the convention governing Law Officers' behaviour and its relation to the case which was "at the heart of the Tribunal's concerns".

It also said that the Tribunal did not properly consider the balance of public interest in disclosure or withholding of the information.

The Court said that it would make no ruling on the substance of the claims, but would ask the Tribunal to rule on them again.

Info Tribunal fluffed on FOI, rules High Court
(The Register, 24 July 2009)

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