Mattha Busby v The Information Commissioner

Mattha Busby v The Information Commissioner

Section 41(1) FOIA does not apply as there was no actionable breach of confidence; the report was not imparted in circumstances importing an obligation of confidence, and the marking 'confidential' alone is insufficient. Section 35(1)(a) FOIA applies only to recommendations 1-4 of the report, not to recommendation 5, which does not relate to policy formulation. The Decision Notice erred in law by failing to consider the report's parts separately. The public interest in maintaining the exemption for recommendations 1-4 outweighs the interest in disclosure.

Parties
Appellant: Mattha Busby; First Respondent: The Information Commissioner; Second Respondent: The Home Office
Jurisdiction
England and Wales
Judgment Date
09 January 2023
Procedural Posture
Appeal / First Tier Tribunal Determination on the Papers
Outcome
Appeal allowed in part
Legal Topics
Freedom of Information, Government Policy, Confidentiality, Public Interest
Information Law Administrative Law Freedom of Information Government Policy Confidentiality Public Interest

Case Brief

Summary, issues, holding and outcome

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Parties

Mattha Busby

Appellant

The Information Commissioner

First Respondent

The Home Office

Second Respondent

Procedural Posture

Appeal / First Tier Tribunal Determination on the Papers

Legal Issues

  1. 1 Whether section 41(1) FOIA (confidence) applies to the ACMD report
  2. 2 Whether section 35(1)(a) FOIA (formulation or development of government policy) applies to the ACMD report or its parts
  3. 3 Whether the Decision Notice erred in law by considering the report as a whole rather than its parts

Ratio Decidendi

Section 41(1) FOIA does not apply as there was no actionable breach of confidence; the report was not imparted in circumstances importing an obligation of confidence, and the marking 'confidential' alone is insufficient. Section 35(1)(a) FOIA applies only to recommendations 1-4 of the report, not to recommendation 5, which does not relate to policy formulation. The Decision Notice erred in law by failing to consider the report's parts separately. The public interest in maintaining the exemption for recommendations 1-4 outweighs the interest in disclosure.

Court Disposition

Appeal allowed in part

Orders

  • The Home Office must provide the appellant with information concerning recommendation 5 of the ACMD report dated 1 December 2016, at pages 6, 23 and 24, within 28 days.
  • The Home Office may withhold the remainder of the withheld information to which s.35(1)(a) FOIA applies.