High Court criticises redaction of junior civil servant names in government disclosure

On Friday 17 November, Swift J handed down a judgment following an interlocutory hearing in R (IAB) v Secretary of State for the Home Department [2023] EWHC 2930 (Admin). The case (which is ongoing) concerns a challenge to the Houses in Multiple Occupation (Asylum-Seeker Accommodation)(England) Regulations 2023 which, if entered into force, will remove premises the Home Secretary uses to accommodate asylum claimants in exercise of his powers under the Immigration Asylum Act 1999 from the scope of the scheme of regulation for houses in multiple occupation contained in Part 2 of the Housing Act 2004.

The Secretaries of State made various disclosure in the proceedings which included redacted documents. Those redactions included names of junior civil servants. The court queried these redactions and a hearing was convened to hear submissions.

Key extracts from the judgment

In a detailed judgment which considered the wider case law concerning the duty of candour, Swift J held that there is no sufficient general reason, as a matter of routine, to redact the names of civil servants outside the rank of Senior Civil Service from documents served in judicial review proceedings. At paragraph 18, he noted the central problem with redactions:

“Redaction leads to significant practical difficulties. The present case is an example of a common situation where email exchanges and other contemporaneous documents are disclosed to explain a decision-making process. Most decisions made within central government now involve significantly sized groups of civil servants. On any occasion one civil servant within the group might be the sender of the message, might be the recipient of the message, or might (usually, will probably) be copied in. Sometimes (as in this case), the civil servants within the group are spread across different government departments. At the least, redacting names makes the decision-making process and the significance of each document disclosed more difficult to understand. In some instances, it may obscure the significance of a document almost completely. When correspondence and other documents are disclosed for the purpose of evidencing a decision-making process it will rarely be the case that it will not assist the court's understanding of that process and the decision itself to know by whom or to whom documents were sent, forwarded, or copied. In most cases, when this information is redacted, any outsider's understanding of the documents (and for this purpose the court is an outsider) is significantly hampered. Misunderstanding and misinterpretation become commonplace. When documents are disclosed, and parties then rely on them by including them in the hearing bundle, the court is under a practical obligation to consider those documents with a view to making sense of how the information in the documents bears upon the legality of the decision under challenge. All this is made much more difficult and much more time-consuming when (for example) successive strings of email correspondence, each pages long, are entirely anonymised. The same point applies to names redacted in the body of correspondence or other documents. All such redactions only detract from the intelligibility of the document and impair achievement of the purpose for which the document was disclosed in the litigation.”

Consequently, he held at paragraph 20:

“the principle that ought to guide the approach in judicial review proceedings is that absent good reason to the contrary (which might, for example, include that the information in question was subject to a legal obligation of confidentiality), redaction on grounds of relevance alone ought to be confined to clear situations where the information redacted does not concern the decision under challenge. The names the Secretaries of State seek to protect are not in this class. Names of civil servants should not routinely be redacted from disclosable documents; redaction should take place only where it is necessary for good and sufficient reason. This conclusion is consistent with the obligation of candour and with the general principle of cooperation between public authorities and the court that is one foundation for judicial scrutiny. This approach will also guard against the practical difficulties caused by excessive redaction”

He rejected the submissions of the government which sought to displace this general position, finding that junior civil servants have no reasonable general expectation of confidentiality in this context (at para 25) and that there was no reason to think that the openness of communication in government would be hindered (at para 27).

Redaction procedure to note

He concluded by setting out the procedure to be followed in situations where redactions are sought in disclosure. Defendants will be well-advised to follow this closely in future cases:

“43. 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. I do not consider the approach I suggest will be unduly onerous for the disclosing party. Before deciding to provide a disclosable document in redacted form at all, the disclosing party will have given careful thought to the reason for redaction. It is neither unreasonable nor onerous to expect the disclosing party to reduce that reason, succinctly, to writing. A requirement to explain at the point when the documents are served reflects in part the provision made in CPR 79.24. That Rule has no application either to these proceedings or to the general run of judicial review claims, but is certainly a model for an efficient and pragmatic approach.

44. When redacted documents are exhibited to a witness statement it may be appropriate for the reason for redaction to be given in that statement. All will depend on the reason for the redaction and the identity of the person making the witness statement. If the redaction is made on LPP grounds it will usually be better for the explanation to be given in a witness statement made by the solicitor with conduct of the case. If the redaction is made for some other reason, it will be for the disclosing party to decide who is best placed to provide the explanation. Whoever provides the explanation should do so in a witness statement. Experience shows that the process of reducing an explanation into a signed statement produces decisions that are better considered. A party receiving a redacted document can decide, taking account of the explanation provided, whether to apply for disclosure of an unredacted version of the document.”

It is understood that the government has been granted permission to appeal the names issue to the Court of Appeal.

This article was written by Charles Bishop, a public and administrative law barrister at Landmark Chambers.