The High Court has dismissed an appeal by Patrick McKillen against the Information Commissioner’s decision on access to records concerning loans linked to the Maybourne Hotel Group.
Mr Justice Noonan delivered judgment on 19 January 2016 in an appeal on a point of law under section 42 of the Freedom of Information Act. The appeal concerned the Commissioner’s decision of 14 November 2014. The court found no error of law in the Commissioner’s approach to record 5 and held that records 6 to 16 were correctly treated as exempt from release.
Mr McKillen had sought records held by the Minister for Finance relating to him or his personal or business loans, including approaches by people seeking information about or the opportunity to acquire those loans. The department identified 19 records. Record 5, the focus of the commercial sensitivity issue, contained three emails from June 2011 about a potential offer concerning Maybourne Group debt. The sender’s identity and details of the proposal, including amounts and percentages, were redacted.
The Commissioner found that disclosing the redacted details could cause material financial loss or gain, or prejudice the relevant person’s competitive position, under section 27(1)(b). She also concluded that the public interest was served by releasing the record in redacted form and was not better served by disclosing the withheld commercial details. The High Court said the challenge to that assessment had not been raised before the Commissioner and, in any event, the decision was not unsupported by evidence or irrational.
The appellant argued that disclosure was in the public interest, saying state officials’ interactions with the Barclays and the treatment of Mr McKillen should be open to scrutiny. The judge noted that there was no evidence that record 5 related to the Barclay brothers. He concluded that the released version disclosed the alleged conduct at issue and that the redacted details added nothing to that complaint. The court also said the appeal was not a fresh hearing for arguments that had not been put to the Commissioner.
Records 6 to 16 had been provided to Mr McKillen under a discovery order in separate litigation. The Commissioner treated them as exempt under section 22(1)(b), which requires refusal where disclosure would constitute contempt of court. Mr McKillen argued that records 6 to 9 were not covered by the order, but the judge found that this factual point had not been raised with the Commissioner and that the appellant had been in a position to check the information.
The judge applied the earlier High Court ruling in EH v Information Commissioner, which held that disclosure of documents subject to discovery could breach the implied undertaking to the court. He said the fact that the FOI request predated the discovery order made no material difference. The appeal was dismissed; the judgment did not order disclosure of the disputed records.