The High Court has ordered safeguards to protect records expected to feature in legal submissions in an appeal by IPB Insurance CLG, while leaving open whether any part of the appeal hearing should be held in private.
The appeal concerns a September 2017 decision by the Information Commissioner directing the Local Government Management Agency (LGMA) to release records sought by Dorothea Dowling under the Freedom of Information Act 2014. The agency had identified eight relevant records: two were released in full and three others in part. The Commissioner found the LGMA was not justified in withholding access to the records covered by the request.
IPB’s appeal to the High Court is on points of law. In a motion, the insurer asked for all or part of the appeal to be heard otherwise than in public, relying on section 25 of the Act and the court’s inherent jurisdiction.
In an affidavit, IPB’s legal and company secretariat director, Emily Chambers, said the review involved commercially sensitive material shared with a limited number of LGMA representatives and PricewaterhouseCoopers (PwC) experts under confidentiality arrangements. She listed information about pricing, profitability, capital adequacy, claims reserves, risk analysis and strategies, as well as statistical analyses and internal governance controls. Chambers said the appeal could not be properly considered without the court examining the records because the Commissioner’s decision and the grounds of appeal were closely tied to their contents.
The Information Commissioner submitted that a private hearing was not required: the appeal was confined to points of law, and the records would not need to be examined or placed in the public domain.
Mr Justice Meenan noted that the Constitution generally requires justice to be administered in public and that any exception must be no broader than necessary. Section 25 permits the court to hear proceedings, or part of them, in private, and also to examine records without disclosing them to a party other than a public body head.
The judge observed that IPB might not be permitted to rely on a point that had not been raised at first instance, citing a prior Supreme Court case. However, he considered it likely that the records’ contents would be addressed in legal submissions. Accepting IPB’s submissions about their confidentiality, he decided to make an order under section 25(2)(c) to protect the documentation.
The court did not then order that any part of the hearing be held in private or specify the wording of the document protections. Meenan said the trial judge might need to broaden the exception during the appeal hearing. He directed that counsel be heard on the wording of the order.