prejudice, and (b) benefits that the proposed disclosure would (or would be likely to
or may) cause or promote.
75. Christopher Martin Hogan and Oxford City Council v the Information Commissioner
EA/2005/0026&0030 provides authority for the consideration of the PIBT.
In
Hogan the following guidance was set out (from 29):“29 First, there is a need to identify the applicable interest(s) within the relevant
exemption…”
“30 Second, the nature of the ‘prejudice’ being claimed must be considered. An
evidential burden rests with the decision maker to be able to show that some
causal relationship exists between the potential disclosure and the prejudice and
that the prejudice is...“real, actual or of substance”...
“34 A third step for the decision-maker concerns the likelihood of occurrence of
prejudice...the chance of prejudice being suffered should be more than a
hypothetical or remote possibility; there must have been a real and significant risk.
76. Hogan also notes that in considering prejudice a public authority needs to
consider the issue in the context that any disclosure will be to the world (para
31), that the FOIA jurisdiction is “motive blind” and that a public authority is
required to give consideration to the possibility of “removing exempt
information, while disclosing all non-exempt information.”
77. The parties in this Appeal made a number of submissions about Hogan. In our
view Hogan does apply for the purposes of the consideration of the PIBT but
not prior to that when considering the reasonableness of the QPO.
78. We noted additional submissions made by the Appellant relating to section 36
for example of 16 May 2023 and 23 June 2023.
79. The Appellant says that section 36(2)(c) FOIA cannot be engaged if UoE also
seeks to rely on sections 40(2) and/or 41. The Appellant concludes (A238):“There is thus an extremely long line of case law, confirmed in numerous branches
of the law, in support of the principle that a general clause cannot be employed to
extend the ambit of a specific clause in the same statute, or (what is essentially the
same thing in different words) to circumvent the mandatory conditions attached to
that specific clause. The Central Lancashire decision is simply an application of that
principle to FOIA: generalia specialibus non derogant.
All this shows that the University’s attempt to use Section 36(2)(c) to extend the
ambit of Section 40(2) and/or 41, circumventing the mandatory conditions imposed
21