On November 22, 2023, the Court of Appeal (England and Wales) held that the Freedom of Information Act 2000 permits the public interest in maintaining non-absolute exemptions to be weighed in the aggregate against the public interest in disclosure.
This decision is technical, and about the unique structure of the United Kingdom’s freedom of information statute. Lady Justice Andrews even remarked, “I anticipate that it will rarely be the case that the issue of statutory construction that we have been asked to resolve would make a practical difference to the outcome of an application for disclosure under FOIA.” The ICO is apparently appealing nonetheless.
I am blogging about the decision because Lord Justice Lewis provides us with this good quote that challenges the idea that a purposive interpretation of an access statute necessarily favours access. He says:
…it is too simplistic to say, as the Upper Tribunal did and as the respondents do, that aggregation of the different public interests in non-disclosure would lead to less disclosure of information and so run counter to the purpose of FOIA which is to promote openness. Similarly, it is unduly simplistic to take the view that FOIA is to be interpreted in as liberal a manner as possible in order to promote the right to information. As Lord Hope recognised in the Common Services Agency case, the right to information is qualified in significant respects and appropriate weight must be given to those qualifications as the “scope and nature of the various exemptions plays a key role within the Act’s complex analytical framework” (see paragraph 34 above). A similar approach to FOIA has been recognised by Lord Walker in BBC v Sugar (No.2) [2012] UKSC 4, [2012] 1 WLR 439, especially at paragraphs 76 to 84 and in Kennedy by Lord Mance and Lord Sumption (with whom Lord Neuberger and Lord Clarke agreed) in the quotations set out at paragraphs 35 and 36 above. Rather, the wording of section 2(2) should be considered, in the light of the statutory context, to determine how Parliament intended the system of exempting information from disclosure to operate.
Bear in mind that the purpose sections in Ontario’s freedom of information statutes expressly state that statutory “exemptions” from the public right of access should be “limited and specific.” The Divisional Court, however, has also held that the statutory purpose of FIPPA and MFIPPA weights in favour of narrowly construing exclusions – the provisions that remove certain records entirely from the scope of the right of access. I question that approach for the reasons articulated by Lord Justice Lewis; it is too simplistic an approach to discerning legislative intent.
Dept for Business and Trade v IC and Montague [2023] EWCA Civ 1378.
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