Home Office v Information Commissioner & Cobain

The Second Respondent, Guardian journalist Ian Cobain, requested the number of orders made by the Home Secretary between 2006 and 2011 depriving British citizens of their citizenship, broken down by reference to the grounds for deprivation. The Home Office released the total figure (13) but withheld the breakdown. The Information Commissioner issued a Decision Notice requiring disclosure (rejecting the Home Office’s reliance on s40(2) – personal data). On appeal to the First-tier Tribunal, the Home Office relied on s23 (Information supplied by, or relating to, bodies dealing with security matters) and was partially successful: the Tribunal held that the number of orders made on counter-terrorist and/or national security grounds was exempt, but required disclosure of the number (if any) made on other grounds. The Home Office made a further  appeal, complaining that disclosure of the non-exempt information, together with the publicly known total number, would enable the public to deduce the counter-terrorism/national security figure that it was entitled to withhold.

What should the Commissioner or Tribunal do where disclosure of non-exempt information under FOIA would lead indirectly to disclosure of exempt information?

Appeal allowed. In the circumstances of this case, it was appropriate for the Upper Tribunal exceptionally to exercise its discretion under s50(4) so as not to require the Home Office to take any steps in respect of the non-exempt information.

Paragraph 18 of the reasons sets out a non-exhaustive  list of 10 relevant consideration to be borne in mind when considering the exercise of the s50(4) “steps” discretion.