West Law Report

Information protected from disclosure

Posted in Times Law Report by mrkooenglish on August 8, 2008

From The TimesAugust 5, 2008

Information protected from disclosure

Court of Appeal

Published August 5, 2008

Secretary of State for the Home Department v British Union for the Abolition of Vivisection and Another

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Lord Justice Carnwath and Lady Justice Hallett

Judgment July 30, 2008

Information supplied by applicants for animal experiment licences was exempt from disclosure under freedom of information provisions if the official in possession of the information knew or had reasonable grounds for believing that it was given in confidence.

That was a subjective test requiring consideration of the position when the information was given and the intentions of the giver at that time, rather than an objective test derived from the law of confidentiality.

The Court of Appeal so held in a reserved judgment dismissing an appeal by the British Union for the Abolition of Vivisection against Mr Justice Eady’s decision in the Queen’s Bench Division ([2008] EWHC 892 (QB)) overturning a decision of the Information Tribunal on January 30, 2008 and confirming a decision made by the Information Commissioner on June 12, 2007 that certain information requested by BUAV under the Freedom of Information Act 2000 was exempt from disclosure under section 44(1) as a result of section 24 of the Animals (Scientific Procedures) Act 1986.

Section 44(1) of the 2000 Act provided that information was exempt from disclosure “if its disclosure … by the public authority holding it – (a) is prohibited by or under any enactment…”

Section 24 of the 1986 Act provides: “(1) A person is guilty of an offence if otherwise than for the purpose of discharging his functions under this Act he discloses any information which has been obtained by him in the exercise of those functions and which he knows or has reasonable grounds for believing to have been given in confidence.”

Mr David Alexander, QC and Ms Kate Olley for BUAV; Mr Tim Kerr, QC and Ms Karen Steyn for the Home Secretary; Mr Akhlaq Choudhury for the commissioner.

LORD JUSTICE CARNWATH, giving the judgment of the court, said that the appeal raised a question of construction under section 24 of the 1986 Act, viewed in the context of the Home Secretary’s obligations under the 2000 Act.

At issue was a freedom of information request by BUAV for certain categories of information supplied by applicants for licences under the 1986 Act.

The request was refused by the Home Secretary, whose decision was upheld by the Information Commissioner, and ultimately by Mr Justice Eady.

BUAV’s case was that information should not be regarded as exempt by virtue of section 24 of the 1986 Act unless it satisfied the tests for an action for noncontractual breach of confidence, as summarised inCoco v A.N. Clark (Engineers) Ltd ([1969] RPC 41, 47): first, the information itself must have the necessary quality of confidence about it; second, that information must have been imparted in circumstances importing an obligation of confidence; third, there must be an unauthorised use of that information to the detriment of the party communicating it.

The question was whether the tribunal was correct in law to read section 24 as importing, by implication, the three-part test derived from Coco v Clark.

It was common ground that, in interpreting section 24, the court must consider it in the context of the 1986 Act, and not through the spectacles of the later 2000 Act.

Viewed in that perspective, there was no reason why it should not be read as meaning what it said.

The section was couched in subjective terms, directed at the state of mind of the official or other person in possession of the information.

It raised a simple question of fact: did he know or have reasonable grounds for believing that the information was “given in confidence”.

The latter words in turn directed attention to the position when the information was given and to the intentions of the giver at that time, either as expressed or as reasonably to be inferred from the circumstances.

There was nothing in the statutory language or the context, or in the parliamentary materials to which the court had been referred, to justify importing a separate, objective test derived from the law of confidentiality.

The Coco v Clark tests were designed to hold a fair balance between competing commercial interests, in the absence of any contractual arrangement.

There was no equivalent balance of competing interests in section 24. It was concerned with the relations of citizen and state. The applicant, required by the state to provide information for a particular purpose, was given statutory protection against its use without his consent for any other purpose.

There was nothing in the 1986 Act itself to require that interest to be balanced against any other interests, public or private, except perhaps that of the hypothetical defendant.

In particular, there was nothing in the 1986 Act to justify limiting the scope of the protection by reference to any more general interest in public information, such as was later given effect by the 2000 Act.

Their Lordships, in agreement with Mr Justice Eady, would confirm the commissioner’s decision.

Solicitors: Mr David Thomas, Islington; Treasury Solicitor; Ms Geraldine Dersley, Wilmslow.

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