The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

Badgering public authorities for information

30 November 2022

Jones v Information Commissioner [2022] UKFTT 424 (GRC)

Dr Brian Jones requested information of the Animal and Plant Health Agency (“APHA”) as to badger culling on account of bovine tuberculosis (“bTB”) and its effect on incidents of cattle infection.

The request was broken down into two questions, the second of which had a handful of sub-questions.

The first matter which the Tribunal had to consider was whether the requests fell to be determined as FOIA or EIR requests. The distinction was an important one both procedurally and practically: because APHA said that the time and resources which it would take to respond to the requests was unreasonable, and the tests for unreasonableness differ under the two regimes, this decision was of consequence.

Under the FOIA there is a strict time limit of 24 hours of work to respond to an FOI request, beyond which the time taken is deemed disproportionate. Under the EIR, the strict time limit is informative but not binding, and the question is whether the time would be manifestly excessive.

The Tribunal held that a request as to measures taken to control bTB was environmental information for the purposes of the EIR. The Tribunal reasoned that this came within the definition because it was information as to “the state of human health and safety”. Although the risk of transmission of bTB was human is relatively low, “bTB in cattle is a concern because it is a disease in animals that forms part of the human food chain”. This is a wide construction of the application of the EIR.

This led the Tribunal to go on to consider the “manifestly unreasonable” provision in r.12(4)(b) EIR. The Tribunal accepted APHA’s estimate that it would take 38 hours to respond to the request, and accordingly this was manifestly excessive. The interesting part of the judgment came next: the Tribunal emphasised that the importance of the information to the public could outweigh the withholding of information even where the time taken would be manifestly excessive and the time is so considerable. This was such a case where the public interest in its own right did outweigh the unreasonableness of the time it would take. The only reason which stopped the Tribunal from ordering disclosure was that similar information was already in the public domain, going some way to satisfying the public interest.

Judgment: click here


Aaron Moss

Call 2013

John Goss

Call 2015

The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.

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