Browning v Information Commissioner & Department for Business, Innovation & Skills: closed evidence in FOIA appeals

30 Jul 2014

The Court of Appeal today dismissed a claim challenging the approach of the First-tier Tribunal (FTT) to the use of closed evidence procedures in information rights appeals. The judgment endorses the approach developed under the FOIA regime and contains some important observations on the unique features of appeals under FOIA and the narrow circumstances in which courts should permit counsel to see or hear evidence which they are not at liberty to disclose to their client.

In September 2008 Mr Browning, a journalist at Bloomberg News, made a FOIA request to the Department for Business, Innovation and Skills (DBIS) for information about companies who had applied for export licences to Iran. Part of his request was refused and the matter subsequently came before the FTT. As is common in FOIA appeals, for part of the hearing the FTT went into ‘closed session’ to hear evidence relating to the disputed information. The FTT refused a request by Mr Browning for his counsel to be present to cross-examine the witnesses and make submissions on the closed material, upon counsel giving appropriate undertakings as to confidentiality.

In a judgment in May 2013 ([2013] UKUT 0236 (AAC)) the Upper Tribunal upheld the FTT’s approach, holding that the tribunal’s function within the scheme of FOIA could not be equated to ordinary civil, adversarial litigation and that the FTT should not permit a representative of an excluded party to see closed material or attend a closed hearing unless it had concluded that it could not otherwise fulfil its investigatory function fairly and effectively, having regard to the competing rights and interest involved.

In its judgment today the Court of Appeal has upheld the Upper Tribunal’s judgment, rejecting the argument that such an approach is contrary to fundamental principles of open justice and natural justice, or ultra vires the FTT’s rules. The judgment confirms that the FTT’s rules permit the approach adopted in this case and that there are sound reasons for that approach ‘so that justice can be achieved to the fullest extent possible, having regard to the conflicting interests which arise in a unique statutory context’. The Court’s judgment also emphasises the need for the FTT to do its utmost to minimise the disadvantage to excluded parties, for example by disclosing as much as possible of what has transpired in a closed session in order to enable submissions to be made in relation to it.

Gerry Facenna and Julianne Kerr Morrison acted for the Department for Business, Innovation and Skills.

Please click to view the judgment in Browning v the Information Commissioner & Department for Business, Innovation and Skills [2014] EWCA Civ 1050