Ministry of Justice v Information Commissioner

Reference: Case No EA/2012/0110

Court: First-Tier Tribunal (General Regulatory Chamber) Information Rights

Judge: John Angel, Pieter de Waal, Narendra Makenji

Date of judgment: 23 Jul 2013

Summary: Freedom of Information - Information relating to infraction proceedings - grounds of exemption - public interest

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Instructing Solicitors: Treasury Solicitor


Under the Freedom of Information Act 2000, the Second Respondent sought information from the Appellant relating to the content of two letters sent by the European Commission to the Government of the United Kingdom alleging a failure to implement the EU Directive on Data Protection effectively. Those letters, which dated from 2004 and 2006, formed part of the infraction process which might lead to the commencement of proceedings against the United Kingdom before the Court of Justice of the European Union.

The First Respondent held in its Decision Notice that the entire contents of the letters fell to be disclosed because the Government had, in response to a previous request from the Second Respondent, disclosed to him a summary of their contents. There was, therefore, nothing of substance left to be disclosed. The Ministry of Justice appealed against that Decision.

Before the hearing the First Respondent changed its position and accepted that it was in fact the very detail of the letters that was in issue. It accepted that the letters had been communicated in confidence and that section 27(2) of the Act was engaged.  It maintained, however, that the public interest in disclosing the information outweighed the public interest in maintaining the exemption.

The Appellant argued that in addition to the exemption relating to confidential information under s 27(2), the exemptions under s 27(1) (prejudice to international relations) and s 35(1)(a) (formulation or development of government policy) were also engaged and that the public interest favoured maintaining the exemptions.


Whether the claimed exemptions were engaged and, if so, whether the public interest in disclosing the information outweighed the public interest in maintaining the exemptions.


(1) The exemptions under sections 27(2) and 35(1)(a) were engaged.

(2) The public interest balance under section 27(2) only favours maintaining the exemption.


The Tribunal proceeded by way of a complete re-hearing of the issues as they stood at the time of the hearing. It did not matter that the Information Commissioner had completely changed the basis of his reasoning in his Decision Notice.

The Tribunal was clearly influenced by the fact that negotiations relating to potential infraction proceedings are usually held in confidence between the Commission and the Member State and the fact that the Government is entitled to some private space in which to consider its response to an alleged failure to implement a Directive.  Given the widespread importance of data protection law, however, there was a significant public interest in knowing the reasons why the Commission felt the United Kingdom may not have given proper effect to the Directive through the Data Protection Act 1998.

Matters had moved on considerably since 2006 and, although the infraction process was not yet complete, there would come a time when the public interest no longer favoured mainting the confidentiality exemption. At the date of the decision under appeal, however, that time had not yet come.