Freedom of information – no longer the Cinderella of rights

17 November 2011 by Rosalind English

BUAV v Information Commissioner and Newcastle University (EA/2010/0064) – read judgment

There is no doubt that freedom of expression plays a starring role in the human rights fairy tale. While she is carried aloft on the soaring rhetoric of citizens’ rights from the newsrooms to protesters’ rallies, the right to information, her shy stepsister, is rarely allowed out. How can that be? Surely we can’t have the one without the other?

The key lies in the Strasbourg Court’s traditionally restrictive interpretation of  the relevant part of Article 10 – “the freedom to … to receive and impart information” (10(1)). Although the right to information is explicit (unlike many of the other rights the Court has conjured from the Convention), it does not entitle a citizen a right of access to government-held information about his personal position, nor does it embody an obligation on the government to impart such information to the individual (Leander v Sweden (1987) 9 EHRR 433). This approach is changing, particularly in relation to press applicants. But the culture remains hostile; as the Court says  “it is difficult to derive from the Convention a general right of access to administrative data and documents” (Loiseau v. France (dec.), no. 46809/99, ECHR 2003-XII – a self-serving statement if ever there was one, given that it is not the Convention but the Court’s own case law that has been so tight-fisted in the past.

So no help from those quarters then, at least for non-press individuals or organisations wanting to winkle kernels from the grip of public authorities. Happily it seems that the domestic arrangements for access to information are being more than adequately enforced and there is nothing in the Freedom of Information Act 2000  that would benefit from the filter of Strasbourg jurisprudence.  Indeed we can see how little Article 10 availed the applicants seeking disclosure of data about the real cost of UK’s climate change commitments – see our post on the Tribunal’s decision in that case.  On its own, FOIA is proving to be a powerful instrument for holding public bodies to account, not least of all because the focus of the proceedings is entirely on the merits of disclosure, rather than it being an issue ancillary to other proceedings, where the question is merely one of confidentiality of evidence.

In this latest decision the First Tribunal takes the important step in limiting the scope of one of the most important exemptions to disclosure in the Act. The British Union for the Abolition of Vivisection requested information from Newcastle University about project licences for experimentation on non-human primates. The University argued that it was protected from disclosure by Section 38, which creates an exemption where publication would endanger the health or safety of individuals involved. It also contended that the full disclosure of the details of the project would open it up to plagiarism and would therefore prejudice its research and development interests. It therefore sought the protection of Section 43(2).

The “risk” exemption

The Tribunal did not agree that the Section 38 exception was engaged at the time the request for information was made to the University. An ordinary reading of the Section requires that disclosure should create a significant and weighty risk of endangering an individual’s physical or mental health.  Considering the statutory purpose of freedom of information, balanced by exemptions, the Tribunal was not persuaded that it should read the word “endanger” in a sense which would engage the exception merely because of a risk.

A risk is not the same as a specific danger. Every time a motorist drives on the road there is a risk that an accident may occur, but driving is only dangerous when a particularly risky situation arises. So, for example, there is always a risk that a researcher might become a target for persons opposing animal research by unlawful and violent means, but the researcher’s physical health would not be endangered unless a specific attack were made.

The Tribunal emphasised the importance of establishing a causal link between disclosure of the particular information and the envisaged danger. Whilst it understood that there may have been fears about the safety of researchers given the past history of extremism and the sensitivity of experiments involving non-human primates, the Tribunal took a pragmatic approach and rested its conclusion on the evidence, which disclosed very little likelihood of anyone being endangered.

The Tribunal added that Section 38 could not be engaged simply because it “might be misunderstood or taken out of context.” Any potential likelihood that the information might be misconstrued can be mitigated by the provision of  information released and whatever explanations or additional information proved necessary. It is no small victory for BUAV in this case that the Tribunal agreed with one of its central campaign messages, that “refusal to communicate with the public carries its own risks, by creating the impression that there is something to hide”.

The commercial prejudice exemption

The Tribunal were “just” persuaded that there was a weighty chance of commercial information being prejudiced occurrence, sufficient to engage the exemption under Section 43(2). However this only warranted the redaction of short passages containing unimplemented research ideas. Significantly, the Tribunal noted that the public interest in maintaining the s43(2) exemption was not as self- evidently strong as that in s38:

A risk of financial loss is not inherently as critical as a risk of endangerment of a person’s health or safety

In any event the section 43(2) exemption is never going to be of as critical concern to requesters as Section 38 simply by its very nature, since the purposes of transparency and disclosure are usually not threatened by the withholding of commercially sensitive information.

This decision will be of considerable interest and encouragement to bodies like BUAV whose task is to scrutinise public decision making and to ensure that sensitive matters such as scientific procedures on animals are regulated in a manner that is rigorous, effective and compliant with the requirements laid down by Parliament.  Access to this kind of information is essential to ensure that there is informed public debate about research of this nature, and about its regulation.  As the Tribunal points out,

The existence of the statutory controls operated by the Home Office does not annul this interest, which extends to seeing how, and the extent to which, the statutory system is working in practice. Such private scrutiny as takes place inside the statutory system is not a substitute for well-informed public scrutiny.

In the present case, the Tribunal added, these interests are further underlined by the fact that the research was supported by public funds.

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