Parallel tracks: judicial review and freedom of information requests

"...it would now be desirable to substitute for the rules hitherto a more flexible and less prescriptive principle, which judges the need for disclosure in accordance with the requirements of the particular case, taking into account the facts and circumstances." Lord Brown stated that: "the time has come to do away with the rule that there must be a demonstrable contradiction or inconsistency or incompleteness in the respondent's affidavits before disclosure will be ordered…"

Wider disclosure

Additionally, various public bodies are subject to the provisions of the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR). These provisions give a possibility of a wider disclosure than that which might be afforded under the duty of candour. The procedure under the FOIA requires first a request to Defra, then an internal review (regulation 11), then an appeal to the Information Commissioner (regulation 18 and FOIA section 50(1)), then an appeal to the First-Tier Tribunal (regulation

18 and FOIA section 57), and then potentially appeals to the Upper Tribunal (Tribunals, Courts and Enforcement Act 2007, section 11) and Court of Appeal (Tribunals, Courts and Enforcement Act 2007, section 13) before access to a document can finally be enforced.

One can see the obvious advantages of this appeal procedure where the entire subject matter of the dispute concerns the disclosure of certain information. However, where the disclosure of the information under either the FOIA or EIR is a collateral part of judicial review proceedings, it seems less sensible and proportionate to pursue two separate proceedings.

The Information Commissioner's Office aims to process 90 per cent of complaints to it within six months. The average EIR case takes 101 days to determine. That is just the first stage of ?the enforcement process. Indeed, the need to bring proceedings promptly for judicial review means that the FOIA/EIR appellate procedure will most likely lag behind the judicial review proceedings; thereby bringing into question the effectiveness of the appellate procedure.

Pursue with vigour

However, despite there being no ouster provision the

High Court seems to accept that ?they have no direct jurisdiction to enforce the FoI or EIR ?directly as part of judicial ?review proceedings ?().

While one might question whether such an inflexible approach is correct, it seems that the practical and prudent approach for a claimant ?seeking further disclosure under the FOIA and EIR is to pursue with vigour the appellate process in addition to the judicial review proceedings.