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Neutral Citation Number: 2015 UKUT 159 AAC
Reported Number:
File Number: GIA 2410 2014
Appellant: Department of Health
Respondent: (1) The Information Commissioner and (2) Simon Lewis
Judge/Commissioner: Mr Justice Charles
Date Of Decision: 30/03/2015
Date Added: 08/04/2015
Main Category: Information rights
Main Subcategory: Freedom of information - right of access
Secondary Category: Information rights
Secondary Subcategory: Freedom of information - public interest test
Notes: Reported with Court of Appeal decision as [2017] AACR 30. Freedom of information – ministerial diary – whether public interest balancing exercise properly conducted – whether information held by Department or exempt information Mr Lewis, a journalist, asked the Department of Health to disclose the contents of the ministerial diary of Andrew Lansley MP under the Freedom of Information Act 2000 (FOIA) and received a redacted version. Mr Lewis complained to the Information Commissioner who held that the majority of the withheld information should be disclosed and that decision was upheld by the First-tier Tribunal (F-tT). The Upper Tribunal (UT) dismissed the Department’s subsequent appeal, holding, amongst other things, that the information was held by the Department when it was entered into the ministerial diary and continued to be so at the date of the request, that non-ministerial information was gathered for departmental purposes and that the public interest in disclosing the information outweighed that in maintaining the exemption. The Department of Health appealed against that decision to the Court of Appeal relying upon the exemptions in section 35 of FOIA concerning the formulation of government policy. Held, dismissing the appeal, that: 1. the correct approach when assessing competing public interests under FOIA was to identify the actual harm or prejudice and the actual benefits that the proposed disclosure would or might confer or promote. That required an appropriately detailed proof, explanation and examination of both the harm or prejudice and the benefits that the proposed disclosure of the relevant material would or might cause or promote. The F-tT had carried out an evaluative balancing exercise, and there was sufficient reasoning supporting and explaining its conclusion in favour of disclosure (paragraphs 43 to 44, 46 to 47, 50 to 52); 2. the question of whether a government department held information in a diary had to be judged in relation to each entry or piece of information in it to determine whether there was an appropriate connection between that information and the Department. It seemed obvious that, subject to any absolute or qualified exemptions in the Act, the information in the diary was held by the Department within section 3(2) during such time as Andrew Lansley had been a Minister, even if it had also been held for him for other purposes, including personal or constituency matters. The termination of his Ministerial position did not change that assessment, since it remained relevant, or potentially relevant, for the Department to know where he had been and with whom, should there be a political, journalistic or historical interest raised with the Department in relation to those matters (paragraphs 54 to 57).
Decision(s) to Download: [2017] AACR 30ws.doc [2017] AACR 30ws.doc