Theresa Schleicher on behalf of Medical Justice v Infromation Commissioner (Dismissed Freedom of Information Act 2000)

Factual and Procedural Background

On 9 November 2012, an individual detained at Harmondsworth Immigration Centre was taken to Harefield Hospital after falling unwell and subsequently died on 17 November 2012. During most of the hospital treatment and surgery, the individual remained handcuffed until shortly before death. The charity Medical Justice sought access to reports related to this case, specifically the Home Office Professional Standards Unit (PSU) investigation and the Prisons and Probation Ombudsman (PPO) report. The Home Office held the PSU report but refused disclosure under section 38 of the Freedom of Information Act 2000 (FOIA), citing health and safety exemptions. The PPO reported no investigation had been conducted. The Information Commissioner partially upheld an earlier complaint, ordering partial disclosure. Medical Justice appealed the decision, challenging the withholding of certain parts of the report under the section 38 exemption.

During the appeal process, it emerged that a Coroner's Inquest had been held on 15 October 2014, which the Home Office had previously denied knowledge of until shown evidence by the Appellant. The Tribunal adjourned to allow the Home Office to reconsider its position in light of this evidence. The appeal hearing resumed on 11 May 2016.

Legal Issues Presented

1. Whether section 38(1)(a) of the FOIA is engaged, i.e., whether disclosure of the withheld information would, or would be likely to, endanger the physical or mental health of any individual.
2. If section 38(1)(a) is engaged, whether the public interest balancing exercise favours maintaining the exemption or ordering disclosure of the information.

Arguments of the Parties

Appellant's Arguments

• The FOIA request sought the PSU report relating to the detained individual's death; partial disclosure had been ordered, but some information remained withheld under the health and safety exemption.
• No evidence had been provided about the family's wishes at the time of the request; any risk to mental health could be mitigated by redactions.
• The public interest in holding the Home Office accountable and learning lessons from the incident remained strong, especially given that other bodies such as the hospital might need to address similar issues.
• Medical Justice acted as a social watchdog with a qualified right under Article 10(1) ECHR to access information of public concern, particularly regarding the State's compliance with human rights obligations.

Respondent's (Information Commissioner's) Arguments

• The Commissioner emphasized considering both the content of the disputed information and the implications of disclosure when assessing the likelihood of harm to health.
• A strong statement from the widow, who had viewed the report, indicated that she and her sons did not want disclosure, from which the Tribunal could infer a risk to mental health.
• The risk to mental health arises from public disclosure of sensitive material, even if the family had already seen the report later.
• There was a significant public interest in disclosure for accountability and learning lessons, but this was outweighed by the public interest in protecting the mental health of the deceased's relatives.
• The Tribunal had no jurisdiction to consider alleged breaches of ECHR rights; such matters could be pursued via Judicial Review.

Additional Party's (Home Office) Arguments

• The Home Office concurred with the Commissioner's position regarding the section 38 exemption.
• They argued that the threshold for engagement of section 38 is a "real risk" of harm to mental or physical health, not a very high hurdle.
• They maintained that bereaved relatives in distressed circumstances are likely to face such risks, justifying withholding the information.
• It was emphasized that the exemption was not sought to conceal information already publicly known.

Table of Precedents Cited

Court's Reasoning and Analysis

The Tribunal carefully examined both open and closed materials, including the disputed PSU report and evidence from the parties. It followed established guidance on closed material procedures to balance transparency with confidentiality. The Tribunal found that the section 38(1)(a) exemption requires a real and significant risk of harm to physical or mental health, not mere distress or worry. The critical time for assessment was the date of the FOIA request (3 December 2014), at which point the family had not read the report nor provided evidence of risk to health.

The Tribunal noted the widow's later email expressing uncertainty about sharing the report but found this to be an expression of wishes rather than evidence of a risk to mental health. The Home Office's internal review acknowledged that disclosure would cause a reasonable amount of distress but did not demonstrate that it would endanger mental health. The Tribunal emphasized that a low-level "veto" by relatives on disclosure cannot override FOIA's purpose of openness unless the statutory exemption is properly engaged.

Comparing to precedents such as Hepple and BUAV, the Tribunal concluded that the withheld information's disclosure would not likely cause harm beyond distress. It found no evidence the information would be used to harass or harm anyone. The Tribunal also considered the significant public interest in disclosure, given the seriousness of the detainee's death, the absence of a PPO report due to a technicality, and the need for accountability and learning lessons within detention and medical contexts.

Ultimately, the Tribunal held that section 38(1)(a) was not engaged. Even if it had been, the public interest in disclosure would have outweighed the exemption.

Holding and Implications

The Tribunal allowed the appeal by Medical Justice and substituted the original decision notice, ordering the Home Office to disclose the requested PSU report within 35 days, subject to necessary redactions of personal data.

The direct effect is that the withheld information must be disclosed, enhancing transparency and public accountability regarding the circumstances of the detainee's death. The Tribunal did not establish new precedent but applied existing legal principles on the health and safety exemption under FOIA. There is no order as to costs, and the decision is subject to any further appeal.