Evidence during FOI disputes can be provided in secret, rules Court of Appeal

The Court said that tribunal rules allow for closed evidence sessions to be conducted, meaning that neither the FOI requester nor their legal representative are allowed to be present. It ruled that the rules do not undermine principles of justice and fairness and accessibility in the tribunal system.

The Court came to its conclusions as it rejected a challenge brought by Bloomberg News journalist Jonathan Browning against the legitimacy of an information rights tribunal's decision to hold evidence gathering sessions which neither he nor his legal representative were allowed to attend.

Browning's bid for access to records of the businesses that had applied for an export licence to Iran in 2008 had been rejected by the Department of Business Information and Skills (BIS). The department argued that the information was confidential and that disclosure of it would, or would be likely to, prejudice the commercial interests of the businesses that had applied for such a licence.

Where information is confidential or where its disclosure would, or would likely, prejudice commercial interests, public bodies are often entitled to withhold that information under the FOI Act. However, a public interest test applies to both exemptions, meaning that if there is a greater public interest in disclosure than there is in withhold the information that information has to be disclosed. BIS had claimed that "the public interest lay in maintaining the exemption", according to the Court of Appeal ruling.

Browning appealed BIS's decision to the Information Commissioner's Office (ICO) and the ICO originally ordered the department to disclose the information the journalist sought access to. However, the Commissioner reversed his position "having seen some material disclosed to him" and the watchdog backed BIS' arguments to withhold the material as the department successfully appealed the disclosure order to an information rights tribunal.

The information rights tribunal concluded that there was a "very high likelihood of real harm to a large number of companies resulting from disclosure of their identities" and so ruled that the public interest favoured the withholding of the information by BIS from Browning.

Hearings before the information rights tribunal were held partly in open session and partly as closed sessions, with Browning and his legal representatives being barred from attending the closed sessions where two of the companies which had applied for an export licence to Iran in 2008 had provided evidence.

At an appeal to an upper information rights tribunal, Browning argued that his legal representative should have had access to the evidence provided during the closed hearings at the original tribunal hearings on the basis that his representative would not pass that information on to him.

However, the upper tribunal (UT) rejected Browning's arguments. It said that "a first-tier tribunal (FTT) should not direct that a representative of an excluded party should see closed material or attend a closed hearing unless it has concluded that, if it does not do so: it cannot carry out its investigatory function of considering and testing the closed material and give appropriate reasons for its decision on a sufficiently informed basis and so fairly and effectively in the given case having regard to the competing rights and interest involved."

The Court of Appeal upheld this finding and said it did not run contrary to principles that exist to ensure justice is done and that the justice system is accessible and fair to bar Browning's legal representative from access to the closed evidence.

The expertise of the tribunal and the Information Commissioner's role in providing oversight of compliance with the FOI Act are factors which "make it permissible to exclude both an appellant and his legal representative except in circumstances where the FTT 'cannot carry out its investigatory function of considering and testing the closed material and give appropriate reasons for its decision on a sufficiently informed basis and so fairly and effectively in the given case having regard to the competing rights and interests involved'," the Court of Appeal ruled.

The Court said that whether a similar case in future would have the same outcome as this case would be determined by the "particular factual context" but said that as much transparency as possible should be provided around the evidence given during closed hearings.

"What is also important is that when the FTT excludes both a party and his legal representative it does its utmost to minimise the disadvantage to them by being as open as the circumstances permit in informing them of why the closed session is to take place and, when it has finished, by disclosing as much as possible of what transpired in order to enable submissions to be made in relation to it," the Court of Appeal said. "The same commitment to maximum possible candour should also be adopted when writing the reasoned decision… I am satisfied that this was achieved in the present case."

"It follows from what I have said that, in my judgment, the Tribunal Procedure Rules, properly construed, do permit the course that was taken by the FTT and upheld by the UT in the present case. There are sound reasons why their natural meaning should be maintained so that justice can be achieved to the fullest extent possible, having regard to the conflicting interests which arise in a unique statutory context," it ruled.