Ivan Murray-Smith v The Information Commissioner & Anor

If on an appeal under section 57 the Tribunal considers-

The public interest is to be assessed by reference to how matters stand at the date of refusal of the request: see Montague v Information Commissioner and DIT [2022] UKUT 104 (AAC), at [86] (overturned by the Court of Appeal on the issue of aggregation of exemptions under Part II FOIA but not in relation to the time (decision on the request) at which the public interest should be assessed (Department for Business and Trade v the Information Commissioner and Montague [2023] EWCA Civ 13).

Section 31 FOIA is a prejudice-based exemption. The approach to be taken in prejudice cases was set out in the First-tier Tribunal decision of Hogan v Information Commissioner[2011] 1 Info LR 588, as approved by the Court ofAppeal in Department for Work and Pensions v Information Commissioner[2017] 1 WLR 1:

S31 FOIA is a qualified exemption, which means that it only applies if in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

The applicable interests are: (a) the prevention or detection of crime and (e) the operation of the immigration controls. In its CLOSED Response to the Notice of Appeal, dated 22 May 2023, the Home Office provided numerous examples of facts and matters relating to the Port which we accept directly constitute or engage those applicable interests as we find them.

It became evident to the Tribunal in the CLOSED session of the hearing that it would be greatly aided by a colour-coded mark-up of the disputed information to show which parts of it the Home Office said engaged which FOIA exemption and why.

To that end, and in compliance with the Tribunal’s directions of 16 November 2023, the Home Office filed a CLOSED mark-up of the Port Approval in force at the time of the Request, showing by colour-coding which parts it submitted engaged the s31 (a) and/or (e) FOIA exemption (and/or the s21 and s43 exemption with which we deal with below), together with a CLOSED table called the Explanation of applicability of FOIA exemptions to the content of the Port Approval (“the Explanation”), referenced in Mr Ochei’s Second Witness Statement dated 29 November 2023.

The Explanation sets out in helpful detail the Home Office’s reasons as to how and why each marked-up part of the disputed information engages each, relevant exemption. Armed with this material, the Tribunal has worked through the Port Approval in force at the time of the Request, and the other unmarked-up material in the CLOSED bundle. Taking together Mr Ochei’s OPEN and CLOSED evidence, and the Explanation, the Tribunal is satisfied that disclosure of the disputed information would disclose such operational matters and security details relating to the Port as to be an effective cause of prejudice to the prevention or detection of crime and the operation of immigration border controls, and that such prejudice would be a matter of very real substance.

The question of the meaning of likelihood in the current context was addressed by the Tribunal in John Connor Press Associates v Information Commissioner (EA/2005/0005, 25 January 2006): “We interpret the expression “likely to prejudice” as meaning that the chance of prejudice being suffered should be more than a hypothetical or remote possibility; there must have been a real and significant risk.” In so doing, the Tribunal drew on the judgment of Munby J in R (on the application of Lord) v Secretary of State for the Home Office [2003] EWHC 2073 (Admin) (a Data Protection Act case) who said: “Likely connotes a degree of probability that there is a very significant and weighty chance of prejudice to the identified public interests. The degree of risk must be such that there ‘may very well’ be prejudice to those interests, even if the risk falls short of being more probable than not.” [100].

We adopt the interpretation of “likely to prejudice” as meaning that the chance of the prejudice being suffered is more than a hypothetical or remote possibility; there is a real and significant risk.

Our assessment of the likelihood of prejudice arising from disclosure of the disputed information is, necessarily, heavily reliant on Mr Ochei’s evidence. We acknowledge that persons in the executive branch of government who are tasked day-to-day with addressing infinite aspects of the prevention and detection of crime and the operation of immigration border controls, will, generally, be best placed to assess what is likely to prejudice those matters and the likelihood of that prejudice arising.

Mr Ochei’s evidence under cross-examination by the Appellant was to the effect that each Port Approval is unique; a specific item of information in it might not, per se, cause any particular issues, but combined with other information in the hands of criminal enterprises, it could be used to create a mosaic picture of information so as to compromise security (and, in the context of s43(2), with which we deal below, the parties’ commercial interests).

The Appellant submitted that that is the wrong way to look at it. He argued that the Home Office’s position that disclosure in one case makes future requests harder to resist (which is not, in fact, what we understood the Home Office to be arguing) was wrong, and that the opposite was true: the Home Office could refuse later requests on the basis that acceding to them would crystallise the risk of the mosaic effect at that stage, and prejudice would have to be established at that point in time.

We disagree. We consider that a public authority is entitled to seek to avert or anticipate prejudice arising from combinations of existing information and disclosures yet to be made, rather than being constrained to approach matters by a retrospective view of what has been previously disclosed, much of which it could not know in any event. The Appellant’s approach would mean a public authority slamming the stable door after the horse has bolted.

Once Mr Ochei was able to give oral evidence freely in CLOSED session, he was able to elaborate the answers he had provided to the Appellant under cross-examination. In our view, his oral evidence, together with the Explanation, established that publication of the disputed information would be likely to give rise to the prejudice we have identified.

Accordingly, the Tribunal finds that s31(1)(a) and (e) FOIA are engaged in relation to the disputed information.

We must go on to consider whether the public interest in maintaining those exemptions outweighs the public interest in disclosing the information requested. The Appellant did not articulate (either in relation to s31(1)(a) or (e) or s42(3) FOIA) any public interest in disclosure. He said that he could not do so as he did not know the information. He accepted that his interest in the information in the Port Approval had been limited to the issue of the Port carrying international passengers. He did not consider there was any causal link between disclosure of that information and likely prejudice and, in those circumstances, he did not consider that the public interest test was engaged.

We find that there was, at the time of the refusal of the Request, a public interest in the operation of border controls at ports in the UK, and in the transparency and accountability of those tasked with that operation.

However, we find that at the time of the refusal of the Request, there was a greater public interest justifying non-disclosure of the disputed information, namely the very real risk that its disclosure would cause significant prejudice to the relevant, protected interests. It may not be possible precisely to articulate the extent of that risk at any given time because it may rest, in part, on that which is not known, namely what information criminal enterprises already have which, in conjunction with either a) information which is already in the public domain and/or b) the disputed information, if published, would enable those enterprises to piece together a mosaic of information to harm the public interest. Assessing that risk necessarily involves a degree of speculation, albeit underpinned by specialist knowledge and/or empirical evidence, but that does not make the assessment unprincipled.

The Appellant says that the Home Office’s disclosure to him on 30 June 2023 of the limited excerpt from the Port Approval shows that Commissioner must have erred in finding that the entire Port Approval was exempt from disclosure.

We disagree. At the time of the Home Office’s refusal of the Request, the Appellant had requested the Port Approval in its entirety. We accept that the public interest at that time lay in maintaining non-disclosure in relation to all the information in the Port Approval as a single body of information. It was only after the issue of Decision Notice that the Appellant considerably narrowed the scope of the Request to make clear that his interest was in why the Port did not carry international passengers. The Home Office evidently re-assessed the public interest test at that point in relation to that issue and concluded, reasonably, in our view, that it was appropriate to disclose the limited excerpt in its letter of 30 June 2023.

Having considered all the circumstances, the Tribunal finds that the public interest in maintaining the exemptions outweighs any public interest in disclosure of the information, and that the Home Office was entitled to rely on s31(a) and (e) FOIA to withhold the disputed information.

Section 43(2) FOIA is also a prejudice-based exemption.

The Home Office has identified that the applicable interests are the commercial interests of the Port and the Government.

It asserted that Associated British Ports, whom we understand to be the owners and/or operators of the Port, agreed with the Home Office’s position as to the likely prejudice that would be caused to the commercial interests of the Port and the Government by disclosure of the disputed information. There was, however, no evidence before us from Associated British Ports to that effect, and we are not, therefore, swayed by that assertion made on behalf of Associated British Ports.

However, having considered both the OPEN and CLOSED material available to us, we are satisfied that disclosure of the disputed information would identify matters which are the subject of commercial confidence and sensitivity between the Port and the Government, for example which model of customs control is being used, specific control terms and conditions, which we understand may vary across all ports, and the content and terms of particular services or facilities provided by the Port to Border Force. We accept that all those matters constitute commercial interests of both the Port and the Government.

The Home Office submitted that another relevant commercial interest is that of the Home Office’s ability to secure the “best terms” with other ports as part of negotiations when granting approval, which might be damaged by disclosure of the arrangements in relation to the Port. Although it is unclear to us precisely what is meant by “best terms” in this context, we can see and accept that the Home Office has a commercial interest in securing a favourable arrangement in any commercial framework, even if it is not obvious to us which precise commercial interest might be damaged in this context.

Again, we have reviewed carefully in the context of s43(2) FOIA, the Home Office’s CLOSED written and oral evidence and the Explanation. We are satisfied that disclosure of the disputed information marked as engaging s43 FOIA would disclose matters which are commercially sensitive to the Port. In a context where we are told Port Approvals are agreed in a competitive market, the exact terms and conditions agreed for any given port will vary, and where the Port Approval for the Port was the subject of confidential negotiations, we find that disclosure of those matters would cause real prejudice to the Port.

It is less obvious to us what the causal relationship between disclosure and prejudice to the Government is in this context. It was Mr Ochei’s written, OPEN evidence that “Other ports may choose not to negotiate or drive a harder bargain in these discussions thereby undermining HMG’s commercial interests.” We had little evidence before us of what was meant by this against the backdrop of what we were being told about the commercial arrangements between the Port and the Government in this particular case, but we are prepared to accept that where, as in this case, the Government and the Port engage in confidential negotiations resulting in a contract between them from which each seeks to benefit in a competitive market, it is more likely than not that disclosure would prejudice not just one party but both, even if to different degrees.

We consider that the chance of such prejudice to the Port’s commercial interests as we have identified, is more than a hypothetical or remote possibility; there is a real and significant risk. The features of the arrangements between the Port and the Government to which we have alluded, and which are set out in detail in the disputed information and the Explanation, are undoubtedly those which would be of interest to other ports, and their disclosure likely to be used by the Port’s competitors to further their own interests.

The Tribunal finds that s43(2) FOIA is engaged in relation to the disputed information.

The Home Office submitted that the public interest balance weighs against disclosure given that the commercial interests of both the Port and the Home Office would suffer (the emphasis on “both” being that of the Home Office), and that the likelihood of harm being suffered outweighs any apparent benefits to the public of information being disclosed, none of which had been particularised by the Appellant.

We accept that there will be a degree of public interest in the commercial arrangements between port owners/operators and the Government. However, we also accept that the negotiation, agreement and delivery by a port of the types of facilities and services addressed in the disputed information are matters of potentially great commercial sensitivity and value to the port and the Government. We also accept that disclosure of the disputed information in a specific case (that of the Port) is likely to impact on the prospect of the Government being able to negotiate and procure such facilities and services more generally with other ports, were they to fear the publication of their relevant, commercial arrangements in due course. That indicates to us a strong public interest in maintaining the exemption, which outweighs any public interest in disclosure.

Accordingly, we find that the Home Office was entitled to rely on s43(2) FOIA to refuse to disclose the disputed information.

The Home Office submits that certain of the disputed information is reasonably accessible to the Appellant otherwise than under s1 FOIA and thus absolutely exempt from disclosure pursuant to s21 FOIA. In its CLOSED mark-up of the Port Approval, it has marked up those parts which it says falls under this exemption. The information consists of the address of the holder of the Port Approval and the address of the National Frontier Approvals Unit; the name of the Holder of the Port Approval and the address of the Port; the Freight Location Code for the Port; and the Appeal process in respect of the Port Approval.

S21 FOIA did not feature in the Home Office’s refusal of the Request, the Decision Notice or the Home Office’s Response to the Appeal. It did feature in the Home Office’s skeleton argument as follows:

Reliance on s21 FOIA was, therefore, something of a late entry. There is no timescale under FOIA for the identification by a public authority of the exemptions on which it may rely. That said, Rule 23(3) of the Rules provides that any respondent to an appeal must state any grounds for opposition to the Appellant’s case. The Home Office’s Response to the Appeal identified not just s31 FOIA but also s43(2) FOIA. It was, however, silent as s21 FOIA.

The Tribunal must consider de novo the decision to disclose or refuse the information requested. A public authority is entitled to lay before the Tribunal all exemptions from disclosure on which it says it was entitled to rely at the time of the decision. Recognising that the Home Office was seeking in advance of and at the hearing to rely on s21 FOIA, the Tribunal exercised its case management powers on 16 November 2023 to issue OPEN directions to the Home Office to file a CLOSED bundle identifying which of the disputed information it contended was exempt form disclosure pursuant to s21 FOIA. The Home Office complied with that direction and at the same time elaborated its position on s21 FOIA in its OPEN closing submissions. The Appellant has therefore had ample opportunity to consider and respond to that, and he has done so.

He submits that if any of the information requested is exempt from disclosure pursuant to s21 FOIA, then the Commissioner must have been wrong to conclude in his Decision Notice that the Home Office was entitled to rely on s31 FOIA to withhold the requested information. We reject that submission. We find that the Home Office when faced with a request for the Port Approval as a whole was entitled to view the Port Approval as a body of information as a whole and conclude that it was exempt from disclosure pursuant to s31(1)(a) and (e) FOIA. Absent understanding that the Appellant’s interest in the information was limited to the discrete issue of the Port carrying international passengers, it was not required to dissect the document to consider specific and peripheral information in it in isolation, with a view to identifying whether those individual items might engage s21 FOIA.

In any event, the Appellant disputes that the information in question was reasonably accessible to him other than under s1 FOIA.

By its Revised OPEN closing submissions, the Home Office has identified where this information can be found. It accepts that it has not previously directed the Appellant to these resources but submits that this was unnecessary, for the s21 FOIA exemption to apply, given that it had always been possible for the Appellant to source this information.

There is no requirement in s21 FOIA for a public authority to direct a person requesting information to where they might find it (although public authorities are expected to offer reasonable advice and assistance to requesters). In any event, given that the Appellant knew the identity of the Port and that there was an item called a Port Approval (as the Request referred to it in precisely those terms), it was immediately open to him to begin simple internet searches and to broaden and deepen his enquiry by the same means as appropriate to identify all that information identified in the Home Office’s Revised OPEN closing submissions as being exempt from disclosure pursuant to s21 FOIA.

The Appellant has not indicated that his circumstances are such that the information was not reasonably accessible to him by those means. Indeed, he is evidently well able to conduct extensive and focused internet searches as he made clear in his complaint to the Commissioner, which we have already set out. We find that the information was reasonably accessible to him.

We find that the Home Office was entitled to rely on s21 FOIA to refuse to disclose the information it has identified as engaging s21 FOIA. S21 FOIA is an absolute exemption and so no consideration of the public interest in its application is required.

During these proceedings, the Appellant has raised two issues, which we feel we must briefly address. First, he has said that the Home Office’s letter of 30 June 2023 was written on a without prejudice basis so that the disclosure by that letter of the limited excerpt of the Port Approval was insufficient to constitute publication under FOIA. Second, he has said that because that excerpt was provided to him in correspondence in the course of the proceedings, he is prevented from publishing it. We disagree with both propositions. As regards the first, the Home Office’s letter of 30 June 2023 was written on an open basis, disclosing the limited excerpt without prejudice to its primary position that it had been entitled to rely on s31(1) FOIA to refuse the Request. As regards the second, the disclosure of the limited excerpt in the Home Office’s letter of 20 June 2023 was not a disclosure in the proceedings. It was the Home Office’s open attempt, in parallel with the proceedings, to satisfy the thrust of the Request under FOIA, once it understood what information the Appellant was driving at.

Separately: by his Response to the Home Office’s OPEN closing submissions, the Appellant has sought the explanation given to the Tribunal by Mr Ochei in CLOSED session at the hearing, as to why it was that s31(1) FOIA applied to the limited excerpt disclosed by the Home Office on 30 June 2023 by reference to other information that was in the public domain. He submits that if the explanation was given exclusively by referencing information that has been disclosed i.e. the limited excerpt and information that is in the public domain, there is no reason why the explanation should not be disclosed.

By its Revised OPEN closing submissions, the Home Office has resisted that, maintaining that Mr Ochei’s explanation should not be released to the Appellant, and therefore into the public domain, as the very act of providing that explanation, and placing it in the public domain, may undermine the prevention and detection of crime.

The Appellant rejects that proposition. He submits that there is no reason why disclosing Mr Ochei’s explanation to the Appellant alone i.e. as distinct from anyone else, may undermine the prevention and detection of crime. And he proposes a solution to address the Home Office’s concern in that regard: that the Tribunal should direct that Mr Ochei’s full explanation be provided to him, and that pursuant to Rule 14(1) of the Rules he be prohibited from disclosing it to anyone.

Disclosure of Mr Ochei’s explanation to the Appellant in these FOIA proceedings would place it in the public domain. We are satisfied that Mr Ochei’s explanation is an entire explanation, and that it is not possible to divorce what he said about the import of any information in the public domain from the disputed information, including the limited excerpt. To attempt that would likely disclose other aspects of the disputed information and/or give insight into the Port’s and Border Force’s immigration control and security concerns. In that context, single items of seeming innocuity or self-evidence may have an inner significance to the mischievous or the malevolent in combination with other information already in their possession or in disclosures yet to be made.

We reject the Appellant’s proposal that he should achieve by the Tribunal’s discretionary application of Rule 14(1), what is effectively a private disclosure to him of information whose disclosure we find the Home Office lawfully to have refused under s31(a) and (e), s43(2) and s21 FOIA.

The function of the Tribunal, by this Decision, is to determine whether the Decision Notice was in accordance with the law or, to the extent that the Decision Notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, and if we consider that the Decision Notice was not in accordance with the law or that the Commissioner ought to have exercised his discretion differently, to allow the appeal, substitute such other Decision Notice as could have been served by the Commissioner, and in any other case to dismiss the appeal (s58 FOIA).

The Tribunal finds that the Home Office was entitled to refuse the Request pursuant to s21, s31(a) and (e), and s43(2) FOIA, and that the Decision Notice was in accordance with the law.