Government loses transparency & redactions case

In R (IAB) v Secretary of State for the Home Department & Ors [2023] EWHC 2930 (Admin), Mr Justice Swift considered whether such redactions were permissible, as a matter of routine, and what procedure parties should follow when seeking to disclose redacted documents.

The government’s redactions extended to the names of external contractors and political special advisors as well as junior civil servants.

Intervening, law reform charity JUSTICE argued that names matter as they often help the court grasp how policies and decisions were made. Therefore, a general policy of withholding names undermined the government’s duty of candour.

It argued that, as public servants, the work of all civil servants is manifestly public not private. It therefore opposed the government’s suggestion that junior civil servants had a ‘reasonable expectation of confidentiality’ in their work and could bypass the usual rules for requesting anonymity.

Agreeing with both points, Swift J held routinely hiding details that would aid understanding of documents is antithetical to the duty of candour, and routine redaction could risk undermining confidence that appropriate legal scrutiny is taking place under fair conditions. Swift J held that fear of publicity alone was not a justification for redactions.

On the procedure to be followed, Swift J said: ‘A party disclosing a redacted document ought to explain the reason for the redaction at the point of disclosure.

‘The explanation need not be elaborate; the simpler and shorter it can be the better. The explanation ought to be such that it affords the receiving party a sensible opportunity to decide whether to apply for disclosure of the document, unredacted. The approach taken by the Secretaries of State in this case, the provision of single word explanations, "relevance", "privilege" and so on, will rarely be sufficient. All will depend on context.’

JUSTICE chief executive, Fiona Rutherford said: ‘For democracy to work, we must be able to check and understand government decision making—[this] judgment safeguards the fairness and transparency of this process.’