Court of Appeal

Published August 5, 2008

Secretary of State for the Home Department v British Union for the Abolition of Vivisection and Another

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Lord Justice Carnwath and Lady Justice Hallett

Judgment July 30, 2008

Information supplied by applicants for animal experiment licences was exempt from disclosure under freedom of information provisions if the official in possession of the information knew or had reasonable grounds for believing that it was given in confidence.

That was a subjective test requiring consideration of the position when the information was given and the intentions of the giver at that time, rather than an objective test derived from the law of confidentiality.

The Court of Appeal so held in a reserved judgment dismissing an appeal by the British Union for the Abolition of Vivisection against Mr Justice Eady’s decision in the Queen’s Bench Division ([2008] EWHC 892 (QB)) overturning a decision of the Information Tribunal on January 30, 2008 and confirming a decision made by the Information Commissioner on June 12, 2007 that certain information requested by BUAV under the Freedom of Information Act 2000 was exempt from disclosure under section 44(1) as a result of section 24 of the Animals (Scientific Procedures) Act 1986.

Section 44(1) of the 2000 Act provided that information was exempt from disclosure “if its disclosure ... by the public authority holding it – (a) is prohibited by or under any enactment...”

Section 24 of the 1986 Act provides: “(1) A person is guilty of an offence if otherwise than for the purpose of discharging his functions under this Act he discloses any information which has been obtained by him in the exercise of those functions and which he knows or has reasonable grounds for believing to have been given in confidence.”

Mr David Alexander, QC and Ms Kate Olley for BUAV; Mr Tim Kerr, QC and Ms Karen Steyn for the Home Secretary; Mr Akhlaq Choudhury for the commissioner.

LORD JUSTICE CARNWATH, giving the judgment of the court, said that the appeal raised a question of construction under section 24 of the 1986 Act, viewed in the context of the Home Secretary’s obligations under the 2000 Act.

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