Line to take - LTT117 - Threshold of adverse effect

• FOI/EIR: EIR
• Section/Regulation: reg 12(5)
• Issue: Threshold of adverse effect
• Source: Information Tribunal
• Details: Archer / Salisbury District Council (9 May 2007); North Western & North Wales Sea Fisheries Committee / Burkham (8 July 2008); Watts / Bridgend County Borough Council (20 November 2007)
• Related Lines to Take: LTT13
• Related Documents: EA/2006/0037 (Archer), EA/2007/0133 (Sea Fisheries), EA/2007/0022 (Watts)
• Contact: LA
• Date: 29/07/2008
• Policy Reference: LTT117
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

The threshold to justify non-disclosure because of adverse effect under 12(5) of the EIR is a high one, and the following issues should be considered in this respect.

Further Information

In Archer v The Information Commissioner and Salisbury District Council the Tribunal stated that the following issues should be considered in deciding adverse affect and that the threshold to justify non-disclosure is a high one:

1. It is not enough that disclosure should simply have an effect, the effect must be “adverse”

2. Refusal to disclose is only permitted to the extent of that adverse effect. (In this case the information request was for the whole of a particular report. The Information Tribunal found that the adverse effect only arose in respect of part of the report and that the cited refusal could not therefore be applied to the whole document.)

3. It is necessary to show that disclosure “would” have an adverse effect - not that it could or might have such an effect. (further discussion of this point is provided in LTT13)

4. Even if there would be an adverse effect, the information must still be disclosed unless “in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.”

This provides a useful summary of the approach required by the wording of the exceptions falling under 12(5).

In North Western & North Wales Sea Fisheries Committee v the ICO the Tribunal followed the approach set out in Archer. In this case it found that the exception at 12(5)(e) was not engaged as it did not consider that the information concerned could be properly regarded as confidential,” nor, even if that confidentiality could be shown, that disclosure “would” adversely affect that confidentiality” (para 84)

The approach in Archer was also referred to in Watts v the ICO, where the information in question was environmental health officers’ reports on the premises of a certain meat supplier. In this case the Tribunal found, in relation to Regulation 12(5)(b), that even though there were criminal proceedings pending against the owner of the premises as at the date of the request, “on the special facts of this case, the disclosure of the information requested would not have adversely affected the accused’s ability to have a fair trial.” (para 7).