About this detailed guidance
This guidance is written for public authorities. It discusses what you should consider when dealing with FOI and EIR requests when there is already information, or some related information, in the public domain. In particular, this guidance will help you to think through the factors you need to consider when deciding whether or not to disclose the requested information if relevant information on the same – or a similar – subject is already realistically accessible to a member of the general public. You should also read it if you need an in depth understanding of the effects disclosure may have if information is already in the public domain.
- What are potential public domain sources?
- Can the information be considered to be in the public domain?
- What can be the effects of information already in the public domain on disclosure?
Digitalisation has led to information increasingly being available and accessible to the public. Therefore, the first step is to have an understanding of the most common public domain sources.
Information can be found from a variety of sources including, but not limited to:
- websites, including FOI forums such as whatdotheyknow,
- social networking sites,
- press releases,
- newspapers and magazines,
- books and academic journals,
- government publications, including local government,
- parliamentary reports (eg Hansard),
- court and tribunal judgements,
- other official reports (eg reports published by regulatory agencies and bodies or civil society organisations),
- TV or radio programmes,
- executive agencies’ reports, records and registers (eg Companies House records), and
- certificates (eg birth, marriage and death certificates) or other archived material available in public archives.
Information which is publicly available is not necessarily in the public domain.
If you receive a request for information and you believe this information – or some related information – is already in the public domain, you need to establish whether:
- the information is realistically accessible to a member of the general public, and
- it was accessible at the time of you dealing with the request.
Information is in the public domain if it is easily, readily and realistically accessible to the public. One example of this is information which can be easily found through a simple internet search.
In Mosley v News Group Newspapers Ltd  EWHC 687 (QB), the High Court found that the information was in the public domain because it had been extensively published on a variety of websites and, as a result, it was widely and easily accessible.
In this case, Mr Mosley was seeking to obtain a court order forbidding further publication of inappropriate video footage of him. The court refused to grant the order. It argued that doing so would be a “futile gesture” given the fact that the material was so widely accessible that “[A]nyone who wishes to access the footage can easily do so” [para. 36]
The information should also be available in practice and finding it should not require unrealistic persistence or efforts nor any specialised knowledge.
This interpretation was established by the High Court of Justice in the landmark case of Attorney General v Greater Manchester Newspapers Ltd  EWHC QB 451 (4th December, 2001).
In the case of Attorney General v Greater Manchester Newspaper Ltd  EWHC QB 451 (4 December, 2001), the High Court of Justice reached the conclusion that for information to be considered as being in the public domain, the public should have direct, rather than indirect, access to it. Further, finding the information should not require any background knowledge or persistence.
The case involved the publication by the Manchester Evening News (MEN) of information which could potentially lead to the identification and whereabouts of two boys after their release from prison. They had been convicted of murder.
Prior to their release, the Attorney General had obtained an injunction order restraining the publication of any information which could lead to the re-identification and location of the two boys. The order included a proviso, which did allow the publication of information already in the public domain at the date of the Court’s order. The MEN’s article released new pieces of information.
The Court examined whether “the additional information provided by the MEN article was nonetheless in the public domain. Could that information have been obtained in some other way by searching Government Department internet websites, or publications [available in libraries]?”. That is, “[D]oes the existence of information which can be accessed but is unlikely to be known to be available to the general public, not engaged in statistics or research of some sort, amount to being as a matter of reality in the public domain?” [para. 27].
The Court concluded that it wasn’t, providing the following rationale:
“In general, I would agree that information available in the public library was accessible to the public. In the present case, having looked at the 2001 publication, in my view it provides detailed and complicated information and statistics not easy to digest by anyone not accustomed to its format or with sufficient background information to know where to look. I do not consider that such information is realistically accessible to the wider public by being on a library shelf, no doubt, under a specialised heading. I would doubt that members of the public, who were not interested in the specialised information, would know such a book existed or that it was placed on a library shelf.
“Second, the information placed on the website of a Government Department would require some degree of background knowledge and persistence for it to become available to a member of the public and would not be widely recognised as available. It would appear that national and regional newspapers with their greater resources were not aware of these sources of information.
“I have come to the conclusion that accessibility to the general public of Government statistical information is, in the present context, theoretical and therefore not generally accessible to the public.” [para. 32 – 33].
This case was not decided under access to information law. However, the same approach is relevant when you determine whether information was already in the public domain when you received a freedom of information request.
In Decision Notice FS50849464, the Commissioner found information withheld by the authority could not be considered to be in the public domain as it was not reasonably accessible to the applicant.
The applicant had submitted a request for information to the Cabinet Office asking for the number of upheld complaints of Ministerial Misconduct.
The public authority refused to disclose the information. It argued the information was already available to the public in reports published by the Independent Adviser, whose remit includes the investigation of breaches of the Ministerial code. In its response, the authority provided the applicant with links to reports and press releases.
The Commissioner disagreed with the Cabinet Office noting that the requester had asked for the specific number of complaints upheld. The Commissioner argued “[W]hilst the complainant could undertake an online search for ministerial misconduct complaints, the Commissioner considers that the complainant would have to already know the number of upheld complaints per year to be certain that he had located all information within the scope of the request. The Commissioner therefore considers that the complainant would, at best, only be able to collate an informed estimate and would not be certain of the correct figure” [para. 84].
The Commissioner concluded that although the information was publicly available, it was not readily available and realistically accessible to the applicant.
The public authority was specifically relying on section 21 – information reasonably accessible to the applicant. You can apply the same reasoning in instances of information already in the public domain. You should consider if what is in the public domain is realistically accessible without the need for any specific efforts or specialised background information.
In addition to considering the question of accessibility in practice, you need to be mindful of whether the information is accessible to a hypothetical average member of the general public who is interested enough to conduct simple and general searches for information.
Information, or some of the information, previously released to a limited audience is unlikely to be considered as being available to a member of the general public.
In Craven v Information Commissioner (EA/2008/0002, 13 May 2008), the Information Tribunal found that although some of the information requested by the applicant had previously been leaked, it could not be said to be accessible to a member of the general public.
The applicant had submitted a request for information to the Financial Services Authority (FSA) asking for a copy of the report produced by the Financial Intermediaries, Managers and Brokers Association on the West Bromwich Building Society. The FSA refused to release the information, relying on section 43 (prejudice to commercial interests) and section 44 (information subject to a prohibition on disclosure).
The applicant objected as a draft of the report had been leaked to various parties and subsequently quoted in proceedings of the Treasury Select Committee, news reports and court proceedings.
The Tribunal found that, although the draft report had been leaked, it did not amount to the information already being in the public domain. The Tribunal also argued that “[I]f the draft report were fully in the public domain, there would be no purpose in requesting it under FOIA. There would also be no basis for disclosing it under FOIA, for by FOIA s21 information which is reasonably accessible to the applicant by other means than a FOIA request is exempt from disclosure under FOIA.” [para. 26].
The Tribunal accepted there were elements of the draft that had not entered the public domain because they were not readily available to the general public.
It argued: “[W]e were satisfied that there were some elements of information in the draft which were not readily available to the public (…) notwithstanding that certain journalists and MPs, and even Mr Craven himself, may have seen them, since they are not readily available to the applicant as a member of the public via the proceedings of the Treasury and Civil Service Committee” [para. 32].
Similarly, the fact that some of the information is known to the applicant or a few other individuals does not mean that information is in the public domain. You still need to consider whether a hypothetical member of the general public can realistically and easily access the information.
In S v IC and the General Register Office (GRO) (EA/2006/0030, 9 May 2007), the Information Tribunal concluded information is not in the public domain if it may be known to the requester but unavailable or inaccessible more widely.
The applicant had requested a copy of documents concerning the decision not to amend the death certificate of the applicant’s brother following a complaint by the family that the certificate was factually inaccurate.
The GRO withheld the information, relying on s41 on the basis that disclosure would create an actionable breach of confidence. The applicant appealed on the grounds the information did not have the necessary quality of confidence and could therefore be released. They argued the disputed information contained details already known to them and, as a result, the information could be considered as being in the public domain at the relevant time.
The Tribunal disagreed, arguing that “[W]hether the information is in the public domain is a matter of degree and whilst it is acknowledged that the disputed information may be known to the Appellant and her family and parts of it are likely to be known to other individuals, it is not information that has been widely disseminated and publicised to the general public. Additionally this is a personal account of private events and since personal recollection of events varies, we are satisfied that this specific information as provided by the Informant is not public knowledge.” [para. 42]
The question of whether the information is realistically accessible to a hypothetical member of the general public is different to whether the information is reasonably accessible to the applicant. In the latter case, you should consider if you can apply section 21, (information reasonably accessible to the applicant by other means). By contrast, when assessing whether information is in the public domain, accessibility to a particular applicant is irrelevant. What matters is whether the information is realistically accessible to the public in general, even though it may not be accessible by the applicant because of their personal circumstances (eg they do not have access to the internet).
If you previously disclosed information under FOIA or the EIR, this information is likely to have entered and remained in the public domain. This applies if it was reproduced in publicly and permanently available sources, such as online disclosure logs, press releases and newspapers or online FOI forums, such as WhatDoTheyKnow. In theory any disclosure under FOIA or the EIR means a disclosure to the public. However, whether the information actually entered the public domain, remains a matter of whether at a later date a hypothetical member of the general public can realistically access it in practice.
Information may also still be considered as being in the public domain even though access is subject to the payment of a fee.
In the case of S v IC and the General Register Office (GRO) (EA/2006/0030, 9 May 2007), the Tribunal noted that “(…) the specific information required to be put on the death certificate is accessible to the public. This is apparent from the fact that a copy is available following the payment of a fee by any member of the public” [para. 50].
You should always be mindful of the question of accessibility in practice. In some circumstances, an excessive charge means that the information is not readily and realistically accessible to a general member of the public because the fee is, in effect, acting as a barrier to access.
The relevant time for considering what information is in the public domain is when you deal with the request. At the latest, this is the time when you must issue your response in accordance with FOIA statutory timeframes.
In Montague v Information Commissioner and the Department for International Trade (‘DiT’)  UKUT 104 (AAC) (13 April 2022), the Upper Tribunal (‘UT’) decided that the First-tier Tribunal (‘FtT’) was wrong to have taken into account disclosures made after the date when the authority issued its refusal notice and to treat the disclosed information as if it were in the public domain.
The applicant submitted a request for information to the DiT. The request was about information on the trade working groups (‘TWGs’) established with a number of foreign countries ahead of the UK’s exit from the European Union.
The DiT disclosed some information within scope but withheld the rest by relying on a number of qualified exemptions.
The authority maintained this position at internal review. However, during the Commissioner’s investigation, the DiT disclosed some information to the applicant.
On appeal at First-tier Tribunal, the FtT considered whether the DiT was entitled to withhold any remaining information within scope. The FtT made its assessment at the time when the authority had concluded its internal review. In considering the public interest factors, the FtT took into account the information disclosed by the DiT after it had concluded dealing with the request. The FtT decided that this considerably reduced the public interest in disclosing the withheld information.
The Upper Tribunal rejected this finding and decided that the FtT had taken the wrong legal approach when reaching its conclusion.
At para. 89, the UT said:
“The wider error the FtT made (…) was on the face of it to weigh in the effect on the public interest balance disclosures that only took place after 8 February 2018 [ie the date when the authority issued its refusal notice], including moreover disclosures that were yet to take place. This was the wrong legal approach. The correct approach was for the FtT to ask, in respect of each piece of information separately, whether at the date of the 8 February 2018 refusal decision, the public interest in maintaining a given exemption outweighed that in favour of disclosure, taking account of anything that was already actually in the public domain as at 8 February 2018.”
Information that was in the public domain at some point in time prior to the information request does not necessarily remain there indefinitely. Key is whether at the time of dealing with a request a hypothetical member of the general public is in a position to realistically access it in practice.
The fact that the information had previously been published or disseminated, including in response to a FOIA request, is irrelevant. What is relevant is whether at the time of dealing with the request the information is still available and, if so, whether it is realistically accessible in practice.
In Kayode vs Information Commissioner and the General Medical Council  UKUT 86 (AAC), the Upper Tribunal established that it was not relevant that the information had been in the public domain at some point in the past. What mattered was what information was in the public domain at the time of the authority dealing with the request.
The case concerned a request for a copy of a determination about a doctor’s fitness to practice. The public authority was the General Medical Council (GMC).
The GMC refused the request as the requested information contained personal data and disclosing it would be in breach of the data protection principles. The Commissioner found that the authority was correct in withholding the information.
The applicant sought to challenge the First-tier Tribunal’s findings on the basis that the doctor could have no reasonable expectation to privacy on the matter, as the information was previously available in the public domain.
The First-tier Tribunal rejected this argument because the authority’s policy only made a doctor’s removal from the medical register available for 10 years. This period had already passed when the applicant submitted the request about the doctor. The First-tier Tribunal found the information was not in the public domain “at the relevant time”.
The Upper Tribunal endorsed this finding and stated:
“as a result of that uncontested finding [ie information was not in the public domain at the time of the request] it was simply not relevant whether the requested information had been in the public domain at some point in the past” [para. 27].
The fact that the information was at one time considered a matter of public record (eg being revealed in open court) does also not mean it has remained in the public space nor that it is readily accessible.
There is no simple rule about the effects of information in the public domain on disclosure. You need to consider the quality and content of the information in the public domain, compare it carefully with the requested information you hold and make an assessment about how this may affect your response.
The ICO acknowledges that this may not always be possible. For example, when the requested information comprises several documents which you may not be in a position to examine in detail to determine what is, or is not, already in the public domain. In such cases, you might find it helpful to look in the round at the matter the requested information is about, then consider to what extent such matter has been publicly discussed and debated.
You should not assume that information in the public domain will automatically diminish the value of the arguments in favour of disclosure. You should not conclude that you can disclose the requested information because there is already information or related information in the public domain. You need to make a decision on a case-by-case basis, depending on the exact content of the information and context of the disclosure.
The principle of the importance of taking into account the context of the disclosure was established by the High Court.
In Financial Service Authority v IC  EWHC 1548 (Admin) (30 June 2009), the High Court criticised the decision of the Information Tribunal for having reached a conclusion by considering the requested information in isolation. The High Court argued “it is simply not sensible to say that all one considers is the information itself, self-contained and self-referential (…) the substance or effect of any disclosure must necessarily and in the nature of things be affected by the context of the disclosure”. [para 46 – 47, emphasis in the original].
Generally speaking, in the context of prejudice-based exemptions and exceptions – where information or some related information is available to the public – is likely to reduce the likelihood or severity of any harm or adverse effect. This also diminishes the public interest in withholding the requested information.
In Foreign and Commonwealth Office v IC (EA/2007/0047, 22 January 2008), the First-tier Tribunal concluded that the disclosure of the requested information would not cause any additional harm given the information already in the public domain.
The requested information was an unpublished early draft (the Williams Report) of a dossier published by the Government on its assessment about Iraq’s Weapons of Mass Destruction. The formerly known Foreign and Commonwealth Office (FCO) refused the request by relying on section 36 (prejudice to the effective conduct of public affairs). The authority argued that disclosure of the Williams report would inhibit the free and frank provision of advice and the free and frank exchange of views for the purpose of deliberation.
The First-tier Tribunal accepted the Commissioner’s arguments that any risk of inhibition was considerably reduced by the fact that there was already a significant amount of information in the public domain. This was a result of the publication of a different report, the Hutton report, about the circumstances surrounding the death of an employee of the Ministry of Defence.
The First-tier Tribunal noted “[W]e agree that the additional effect of disclosure over what had already taken place is significantly less than if the requested information were the first information on the drafting process to be put into the public domain” [para 26]. On the basis of this, the First-tier Tribunal concluded that “the ‘chilling effect’ would have been quite limited, given that the Hutton Report had not only put into the public domain a great deal of information on the subject but had also provided a detailed description of the circumstances in which the Dossier had been prepared, so that the public was in a good position to place the Williams draft into its correct context” [para. 28].
Bearing in mind what is already in the public domain, you always need to consider the likelihood of any harm on a case-by-case basis. You should look at whether the disclosure may reveal anything new beyond what may already be known to the public. You should also consider whether the disclosure would still be harmful because it would draw more attention to a sensitive issue or reopen a debate at a particularly sensitive time.
Safe space or chilling effect arguments about prejudice may not have the same force when there is already information, or similar information, in the public domain at a given point in time.
The requested information may be more detailed than the information already in the public domain. It could corroborate an unreliable source or leak or it could provide official confirmation about whether or not you hold any additional information.
In The Commissioner of the Police of the Metropolis v IC and Rosenbaum  UKUT 5 (AAC) (7 January 2021), the Upper Tribunal found the authority was entitled to rely on section 23(5) on the basis that were the authority to confirm it held the information, this would have added to the information available in the public domain, thereby increasing the likelihood of prejudice.
The case concerned a request for information made to the Commissioner of the Police of the Metropolis (MPS) for all information held by the then Special Branch in relation to the National Front in 1974, 1975 and 1983.
In 2006, the functions of the Special Branch were incorporated within a unit called Counter Terrorism Command (CTC) whose most important intelligence partner is the Security Service. The Security Service is one of the bodies having remit over national security which is listed under section 23 of FOIA. As a result of this, the MPS refused to confirm or deny whether it held any information in relation to the request.
The requester challenged the refusal. He noted that there was already information in the public domain about the Special Branch. In particular, the requester noted that the authority had previously released information from the Special Branch in response to FOIA requests about different groups. He also pointed out the existence of a BBC documentary, ‘True Spies’ in which ex-Special Branch officers gave interviews about the Branch’s role in infiltrating the National Front. The Police had issued a press release about the programme in which they stated that they had assisted the BBC with its research on the topic.
In light of the information already in the public domain, the requester argued that there could be no potential for harm because the requested information was already effectively a matter of public record. He also contended that the press release issued following the BBC documentary could be read as an official confirmation that the information was held.
The Upper Tribunal rejected these arguments. It stated that “there is a qualitative difference between credible third party information and official confirmation of that information. (…) The provision of official confirmation by means of a ‘yes’ or ‘no’ answer that that information was held would provide a qualitatively different foundation for the drawing of inferences from that provided by the unconfirmed information contained in the TV programme” [para. 57]. The Upper Tribunal also concluded that the assistance provided to the BBC and the subsequent press release did not amount to an official confirmation that information was held.
The Upper Tribunal found that the MPS was entitled to refuse to confirm or deny holding any information because such a confirmation or denial could add something new to what was already in the public domain.
The Upper Tribunal also accepted the MPS’s witness statement that this would, in turn, increase the likelihood of prejudice because:
“confirmation or denial of particular information could undermine operational effectiveness. For example, the confirmation of particular information on a particular group may lead a terrorist to ascertain where or how the intelligence was gathered. This would have a seriously detrimental effect to the operational capabilities of information gathering units. While there may be information in the public domain which purports to disclose information or covert tactics, persons of interest or organisations that are of interest to CTC, much of this is speculative and has not been confirmed by CTC/former Special Branch (or UK policing). Criminals and terrorists must be kept guessing as to CTC/former Special Branch’s areas of interest so that they do not change their behaviour and make it more difficult to counter their threat” [MPS’s witness statement as quoted at para. 61 of UT’s decision].
You should carefully consider any harm a disclosure may cause where the revealed information has the potential to be combined with other related information already in the public domain. This is referred to as the ‘mosaic’ or ‘jigsaw’ effect. It means that on its own the requested information might not be harmful. However, if disclosed, it could be pieced together with other information already known, thereby increasing the likelihood of prejudice. This is why it is important that you look at the content of the information in the context of its disclosure.
In Cole v IC and Ministry of Defence (EA/2016/0290, 11 July 2017), the First-tier Tribunal accepted the public authority’s evidence that the requested information, if released, could be collated with other information in the public domain and concluded that this would significantly increase the risk of prejudice.
The applicant had submitted a request for information to the Ministry of Defence (MOD) about the number of military drones and base location of drones fleet being used in operations against the Islamic State of Iraq and Levant (ISIL), also referred to as Daesh.
The MOD refused the request by relying on section 26 (defence). The authority argued that the disclosure would give enemy forces intelligence which would enable them to build “a detailed picture of UK tactics and strike capabilities” [para. 12]. This, in turn, would be likely to prejudice the section 26 interests because the enemy would exploit this knowledge to develop more effective counter tactics.
The applicant challenged this argument, noting the amount of information already in the public domain. The applicant also pointed out that information of a similar nature had been placed in the public domain by the MOD itself. This included responses to FOIA requests, and in those instances the release of information had not been shown to be harmful to section 26 interests [para. 26].
The Tribunal dismissed the requester’s appeal. It accepted the MOD’s evidence that the kind of information on similar operations previously released did not go into the same level of detail as the requested information. It was also released in a different context. The FTT went on to acknowledge the higher likelihood of prejudice which could stem from the possibility that the requested information could be combined with other information in the public domain before concluding:
“answers [to the FOIA request] would provide an insight into the RAF’s capabilities and activities which is not disclosed by what might be described as ‘generic information’ (…) we accept the [MOD’s] evidence that, as a result of their capabilities, Daesh pose a real risk of being able to make adverse use of the answer (…) by collating it with other evidence so as to establish a picture of actual day-to-day RAF capabilities and activities” [para. 59 and 66].
This example is also indicative of similar effects considerations in the context of information already known to the public. You should look at the effects that the release of similar or related information had in the past. This will inform your decision about whether disclosure of the requested information could have a similar effect in the current circumstances.
If you can provide evidence that disclosure of similar information has been harmful on previous occasions, this can strengthen your arguments about the likelihood of prejudice that revealing the requested information would have in the context of what information is already in the public domain. However, you should always consider the differences of the content of the information as well as of the context and timing of disclosure before drawing such parallels.
In the case above, the authority was able to show that the information previously released in the public domain, including in response to FOIA requests, was not as harmful as the disclosure of the requested information would be. Although the information in the public domain was of a similar nature, it did not provide the same level of detail and insight into the MOD’s operations.
The authority was also able to demonstrate the time-sensitivity of the requested information compared to previous releases. It was also able to show the difference in the context of disclosure. This was the fact that the British military forces were facing a more sophisticated enemy who was better equipped to combine the information with other pieces of evidence thereby increasing the risk and severity of prejudice.
If mosaic and similar effects arguments form part of your considerations to not disclose the requested information, you should point the requester to the information already in the public domain. You should explain why you believe disclosing the requested information would be harmful in light of what is already known.
In the case of mosaic arguments, you should explain why it is likely that the requested information could be combined with what is already in the public domain and show the additional harm likely to occur from the combination. In the case of similar effects arguments, you should evidence how the disclosure of similar or related information has been harmful in the past. You should also explain how this supports your arguments for withholding the requested information in the current circumstances.
After considering the effects information in the public domain may have on the likelihood of prejudice, you need to look at the effects on the public interest test.
The key point to determine is whether the requested information would reveal anything new beyond what is already known to the public. In the ICO’s view, even though there is already information or some related information in the public domain, there will always still be some general residual interest in disclosure. That is, you should always give some weight to general transparency and full picture arguments.
These factors are likely to carry additional weight if disclosure of the requested information would:
- reveal some new details which would further inform public debate on a particular issue;
- corroborate a previously unreliable source or leak; or
- give previously unknown context to the information already known.
The factors will also carry additional weight if in light of information or some related information in the public domain:
- there is objective reason to believe that what is known to the public provides an unbalanced view of events; or
- information in the public domain contains reasonable grounds for a suspicion of wrongdoing or poor performance.
In Cabinet Office v Lamb and IC (EA/2008/0024 and 0029, 27 January 2009), the Tribunal found that the public interest in disclosure of a set of formal minutes about the decision to commit the national armed forces to the invasion of Iraq outweighed the public interest in withholding the information. This was also in light of the release of information in the public domain through the publication of the Butler report. Its conclusions included criticisms about the decision-making process in the Cabinet and expressed concerns that the collective political judgement of the Government had been clouded as a result.
The applicant had requested the minutes of two meetings of the Cabinet which took place in March 2003, at which Ministers decided to commit the UK’s armed forces to military action in Iraq.
The Cabinet Office refused to disclose the information by relying on section 35 (formulation of government policy). It argued that the public interest in maintaining the exemption outweighed the public interest in disclosure.
The Tribunal rejected the authority’s arguments and ordered the disclosure of the formal minutes of the meetings. The First-tier Tribunal acknowledged there was a strong public interest in maintaining the confidentiality of the information and preserving the principle of collective responsibility. However, it ultimately concluded that:
“the public interest factors in favour of disclosure are, in the view of the majority, very compelling. The decision to commit the nation’s armed forces to the invasion of another country is momentous in its own right and, (…) its seriousness is increased by the criticisms that have been made (particularly in the Butler Report) of the general decision making processes in the Cabinet at the time. There has also been criticism of the Attorney General’s legal advice and of the particular way in which the 17 March Opinion was made available to the Cabinet only at the last moment and the 7 March Opinion was not disclosed to it at all. The approach adopted during the Cabinet meetings by those who were aware of the 7 March Opinion, as well as those who were not, is of crucial significance to an understanding of a hugely important step in the nation’s recent history and the accountability of those who caused it to be taken” [para. 79].
How much weight you give to such arguments is likely to depend on:
- the severity of the suspected wrongdoing;
- the evidence substantiating any allegations; and
- the reliability of the source.
You should be aware that you cannot apply arguments about misrepresentation or wrongdoing to any information reflecting proceedings in Parliament. For example, Hansard or select committees reports. This is because parliamentary privilege prevents anyone else from considering or questioning the accuracy or reliability of such information.
If there is information in the public domain which may give rise to suspicion of spin or wrongdoing, it is possible disclosure may help you to allay suspicions even though the information is in effect not revealing anything new beyond what is already know.
In Baker v IC and the Department for Communities and Local Government (EA/2006/0043, 1 June 2007), the Tribunal reasoned that:
“one reason for having a freedom of information regime is to protect Ministers and their advisers from suspicion or innuendo to the effect that the public is not given a complete and accurate explanation of decisions; that the outcome is in some way “spun” (to adopt the term whose very invention illustrates this tendency towards cynicism and mistrust). Disclosure of internal communications is not therefore predicated by a need to bring to light any wrongdoing of this kind. Rather, by making the whole picture available, it should enable the public to satisfy itself that it need have no concerns on the point” [para. 24].
When considering a suspected wrongdoing or poor performance, you should also be careful about avoiding arguments based on the existence of other systems of scrutiny or regulation as a factor to diminish the public interest in disclosure. If the issue the requested information is about is also being investigated by an independent regulatory body, you cannot use this as a consideration for diminishing the public interest in FOIA or the EIR disclosure by arguing that the public interest in scrutinising or debating the issue is being met elsewhere. This is because FOIA and the EIR exist as an additional, rather than alternative, means of promoting public debate and transparency.
In Department of Health v IC (EA/2008/0018, 18 November 2008), the Tribunal rejected the authority’s argument that the public interest in disclosure was reduced as there were already systems in place to ensure proper accountability and scrutiny in relation to the issue the requested information was about.
The applicant had requested a copy of a contract to provide electronic recruitment services for the NHS. The Department of Health refused to disclose the information. It claimed, as one of the factors which reduced the general public interest in the transparency of government, that the Department was required to report its procurement decisions to Treasury as well as being further examined internally by the Office of Government Commerce and the Public Accounts Committee.
The Tribunal found that “there is internal scrutiny whilst important does not meet the argument that the public have no opportunity to participate in this scrutiny” [para 72].
There may be circumstances where a disclosure may not add anything new to what is already in the public domain, thereby tipping the public interest test balance towards maintaining the exemption or exception.
In Willow v. Information Commissioner and another  EWCA Civ. 1876 [22 November 2017], the Court of Appeal (CoA) decided the First-tier Tribunal and the Upper Tribunal were right to give weight to the information in the public domain. They had decided that the Ministry of Justice (MoJ) had correctly applied s31(1)(f) in order to withhold an unredacted copy of a training manual about Minimising and Managing Physical Restraint (MMPR) of children and young adults.
When dealing with the request, the MoJ responded by providing the applicant with the means of accessing a redacted copy of the document. The MoJ explained that the unredacted version of the manual was a ‘restricted’ document engaging exemptions under s31(1)(f), good order and s38 1(a)(b), Health and Safety. At para. 37, the CoA concluded that the First-tier Tribunal and Upper Tribunal had not acted perversely or irrationally when they found that “given the extent and detail of what is already in the public domain, the benefit in terms of transparency and of public confidence in the lawfulness and humanity of the system was limited”.
For arguments such as these to carry any material additional weight, you should satisfy yourself that disclosure of the requested information would not add much to the public understanding of a particular issue in light of the information already in the public domain.
- Section 21 – Information reasonably accessible to the applicant by other means
- Section 22 – Information intended for future publication and research information
- Guidance on the public interest test
- Guidance on the prejudice test