Line to take - LTT13 - Prejudice test

• FOI/EIR: FOI
• Section/Regulation: s26, s27, s28, s29, s31, s33, s36 (read in conjunction with LTT36), s38, s43
• Issue: Prejudice test
• Source: Information Tribunal
• Details: John Connor Press Associates / National Maritime Museum (25 January 2005); Hogan / Oxford City Council 17/10/2006); Dziecielewiski / OCG (02/05/2007); Reith / LBHF (1 June 2007); England / LBB (10 May 2007); Mcintyre / Ministry of Defence (14 January 2008)
• Related Lines to Take: n/a
• Related Documents: FS50063478, EA/2005/0005 (J C P/NM M); EA/2005/0026 and EA/2005/0030 (Hogan/Oxford); EA/2006/0068 & EA/2006/0080 (Dziecielewski/OGC); EA/2006/0058 (Reith), EA/2006/0060 & EA/2006/0066 (England), EA/2007/0068 (Mcintyre); Awareness Guidance 20
• Contact: EW/LA/RM
• Date: 01/05/2009
• Policy Reference: LTT13
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

The prejudice test is not a weak test, and a public authority must be able to point to prejudice which is “real, actual or of substance” and to show some causal link between the potential disclosure and the prejudice.

“Likely to prejudice” means that the possibility of prejudice should be real and significant, and certainly more than hypothetical or remote. “Would prejudice” places a much stronger evidential burden on the public authority and must be at least more probable than not. Where the level of prejudice has not been specified then, unless there is clear evidence that the higher level should apply, the lower threshold should be used.

The acceptance that a prejudice based exemption is engaged, and the level of likelihood at which it is engaged - “would” or “would be likely to “ - will affect the consideration of the Public Interest Test

Further Information

The prejudice test

In Hogan v the ICO and Oxford City Council the Tribunal stated that “The application of the ‘Prejudice’ test should be considered as involving a numbers of steps. First, there is a need to identify the applicable interest(s) within the relevant exemption … Second, the nature of ‘prejudice’ being claimed must be considered … A third step for the decision maker concerns the likelihood of occurrence of prejudice.” (para 28 to 34).

Step 1 - Identifying the applicable interests within the relevant exemption

This will basically be a case of carefully considering the wording of the exemption in question and ensuring that the prejudice claimed is to the interest stated. For example, it is only prejudice to the economic interests of the United Kingdom that can be considered under s29(1)(a), so arguments about prejudice to other non-economic interests of the United Kingdom abroad would have no relevance to this exemption (although, they might be relevant to a claim of s27(1)(d)).

As a number of prejudice based exemptions have multiple subsections covering different interests, it will be important to know which subsection, and therefore what prejudice, the public authority is claiming.

Step 2 - Considering the nature of the prejudice

The Tribunal in Hogan commented as follows (at para 30) “Second the nature of the ‘prejudice’ being claimed must be considered. An evidential burden rests with the decision maker to be able to show that some causal relationship exists between the potential disclosure and the prejudice and the prejudice is, as Lord Falconer of Thoronton has stated “real, actual or of substance” (Hansard HL VOL. 162, April 20, 2000, col. 827) If the public authority is unable to discharge this burden satisfactorily, reliance on ‘prejudice’ should be rejected.”

A fuller extract of the quote from Lord Falconer of Thoronton is “Finally, on the subject of exemptions, I want to emphasise the strength of the prejudice test. Prejudice is a term used in other legislation relating to the disclosure of information. It is a term well understood by the courts and the public. It is not a weak test. The commissioner will have the power to overrule an authority if she feels that any prejudice caused by a disclosure would be trivial or insignificant. She will ensure that an authority must point to prejudice which is “real, actual or of substance”.

The Commissioner’s view of this is that the choice of the term “prejudice” is important to consider in this context. It implies not just that the disclosure of information must have some effect on the applicable interest, but that this effect must be detrimental or damaging in some way. If a “trivial or insignificant” prejudice is claimed then it is questionable whether any detriment or actual prejudice to the interest being protected has truly been identified.

In terms of casework, if the ‘prejudice’ identified is insignificant or trivial and as such cannot be said to have any real detrimental or prejudicial effect, or if the nature of the prejudice claimed cannot be adequately linked backed to the disclosure of the information in question, then the exemption should not be accepted as having been engaged. (see also comments under heading “Evidence of Prejudice” below)

Step 3 - Considering the likelihood of the prejudice

Would be likely to prejudice

In the case of John Connor Press Associates Limited v The Information Commissioner the tribunal confirmed that “the chance of prejudice being suffered should be more than a hypothetical possibility; there must have been a real and significant risk.” (para 15) his interpretation follows the judgement of Mr Justice Munby in R (on the application of Lord) v Secretary of State for the Home Office [2003]. In that case, the view was expressed that, “Likely connotes a degree of probability that there is a very significant and ‘eighty chance of prejudice to the identified public interests. The degree of risk must be such that there ‘may very well’ be prejudice to those interests, even if the risk falls short of being more probable than not.”

In other words, the risk of prejudice need not be more likely than not, but must be substantially more than remote.

Would prejudice

In the case of Hogan v Oxford City Council & the Information Commissioner the Tribunal found that the “prejudice test is not restricted to “would be likely to prejudice”. It provides an alternative limb of “would prejudice”. Clearly this second limb of the test places a much stronger evidential burden on the public authority to discharge.”

For “would prejudice” whilst it would not be possible to prove that prejudice would occur beyond any doubt whatsoever, prejudice must be at least more probable than not.

Level of likelihood of Prejudice not specified by Public Authority

In Mcintyre v The information Commissioner and the Ministry of Defence the public authority had claimed s36(2) but had not specified whether the Qualified Person’s opinion was that prejudice would occur or would be likely to occur.

The IT commented at paragraph 45 that “We consider that where the qualified person does not designate the level of prejudice, that Parliament still intended that the reasonableness of the opinion should be assessed by the Commissioner but in the absence of designation as to level of prejudice that the lower threshold of prejudice applies, unless there is other clear evidence that it should be at the higher level.”

The ICO position is that where the level of prejudice has not been specified then case officers should give the pa an opportunity to clarify which test has been applied. However, this approach doesn’t lead to clarification then the above principle from Mcintyre should be followed. Whilst the Tribunal didn’t expand upon what it meant by “clear evidence” the Commissioner considers that the language of the arguments may be significant even if it doesn’t exactly mirror the wording of the exemption. For example arguments made about consequences of disclosure, rather than possible consequences of disclosure, might be taken as evidence of the higher test.

The Commissioner’s view is also that this principle can be extended to other prejudice based exemptions. Therefore where a public authority has failed to specify the level of prejudice at which an exemption has been engaged the lower threshold of “likely to prejudice” should be applied, unless there is clear evidence that it should be the higher level.

Level of likelihood of prejudice accepted by the Commissioner

If a public authority specifies that a prejudice “would” occur, and the Commissioner considers that this level of likelihood has not been demonstrated, but that the lower level of “would be likely to occur” has been demonstrated. Then, apart from in section 36 cases for which see LTT36, it will be acceptable to engage the exemption on a “would be likely to” basis and then carry this level of likelihood through to the public interest test (see also below)

Similarly (although in practice this may occur less often) if a public authority specifies that a prejudice “would be likely to” occur, but the Commissioner considers that the evidence presented actually demonstrates that the prejudice “would” occur. Then, apart from in Section 36 cases for which see LTT36, it will be acceptable to engage the exemption on a would” basis and then carry this level of likelihood through to the public interest test (see also below)

Evidence of Prejudice

The Commissioner’s view, taking into account the Tribunal’s comments in Hogan, is that there is an evidential burden on the public authority to be able to demonstrate that:

The nature of the prejudice claimed can be linked backed to the disclosure of the information in question

The likelihood of the prejudice occurring meets the test for the level of likelihood claimed. In Reith v ICO and London Borough of Hammersmith and Fulham (LBHF) the IT found that the public authority had not provided evidence of a causal link and that the exemption in question, s31(1)(g) in conjunction with s31(2)(c), was therefore not engaged. LBHF had relied upon its own parking enforcement expertise in support of its belief that prejudice would occur but had not provided evidence beyond this. The IT considered that “[its] evidence is not independent, and being unsupported amounts to a bare assertion. Such examples as given by LBHF do not demonstrate anything more than an unsupported fear that disclosure might increase illegal parking.”

However, in England v ICO and London Borough of Bexley (LBB) the Tribunal stated that it ‘as impossible to provide “evidence of the causal link between the disclosure of the list [of empty properties] and the prevention of crime. That is a speculative task, and as all parties have accepted there is no evidence of exactly what would happen on disclosure, it is necessary to extrapolate from the evidence available to come to the conclusion about what is likely”

From this it can be seen that although unsupported speculation or opinion will not be taken as evidence of the nature or likelihood of prejudice, neither can it be expected that public authorities must prove that something definitely will happen if the information in question is disclosed. Whilst there will always be some extrapolation from the evidence available, the public authority must be able to provide some evidence (not just unsupported opinion) to extrapolate from.

When considering the likelihood of prejudice, for the test of “would” rather than “would be likely to” the evidence will need to be sufficient to support the higher test.

The effect of engaging a prejudice based exemption on the Public Interest Test

The acceptance that a prejudice based exemption is engaged, and the level of likelihood at which it is engaged will affect the consideration of the Public Interest Test.

A set out above, in order to engage a prejudice based exemption it will be necessary to establish that any effect from disclosure of the information is detrimental or damaging to the interest being protected in some real way. So when considering the “severity” of the prejudice under the Public Interest Test it will be important to remember that in accepting that the exemption has been engaged it has already been accepted that the nature of the prejudice is not “trivial or insignificant”.

The level of likelihood accepted when the exemption is engaged should be carried through into the Public Interest Test.

In accepting that an exemption has been engaged on a “would be likely” basis it has already been accepted that the likelihood of the prejudice occurring is substantially more than remote, and so it will not be acceptable to argue in the Public Interest Test that the likelihood of the prejudice occurring is anything less than this. It would also not be consistent to allow that the prejudice “would” occur.

Similarly, where an exemption has been successfully engaged on a “would” basis, it would not be consistent to find in the Public Interest Test that the likelihood of prejudice occurring as anything less than “more probable than not”

The practical effect of this is that although a public authority that claims “would prejudice” as a higher hurdle to overcome when engaging the exemption; if it manages to meet this higher test, then it may effectively bolster its arguments in favour of maintaining the exemption when it comes to the Public Interest Test. It should be remembered, however, that even if the arguments in favour of maintaining the exemption are strong this won’t necessarily mean that the information should be withheld, as equally weighty arguments in favour of disclosure would tip the decision in favour of disclosure.