Information in the public domain

Example

In Mosley v News Group Newspapers Ltd [2008] 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]

Example

In the case of Attorney General v Greater Manchester Newspaper Ltd [2001] 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].

Example

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.

Example

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].

Example

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]

Example

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].

Example

In Montague v Information Commissioner and the Department for International Trade (‘DiT’) [2022] 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.”

Example

In Kayode vs Information Commissioner and the General Medical Council [2021] 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].

Example

In Financial Service Authority v IC [2009] 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].

Example

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].

Example

In The Commissioner of the Police of the Metropolis v IC and Rosenbaum [2021] 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].

Example

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].

Example

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].

Example

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].

Example

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].

Example

In Willow v. Information Commissioner and another [2017] 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”.