To redact or not redact, that is the question.
R (IAB & Ors) v Secretary of State for the Home Department & Anor [2023] EWHC 2930 (Admin)
In R (oao IAB & Ors) v Secretary of State for the Home Department & Anor [2023] EWHC 2930 (Admin) (“IAB”), Mr Justice Swift reconfirmed the approach – in the context of judicial review litigation – to redactions of the identities of officials in disclosed documents. In general, a litigant in judicial review proceedings is not entitled to redact, on the ground of relevance, the identities of officials in such disclosure. Whilst in some respects this judgment is a restatement of obiter remarks in FMA v Secretary of State for the Home Department [2023] EWHC 1579 (Admin) and the most recent version of the Administrative Court Guide (see here for our discussion on this), Swift J’s determination is nevertheless helpful as a reminder of the required approach to redactions and, relatedly, the procedure a party should follow where it wishes to redact including for reasons of relevance. Public authority defendants should take note and apply this judgment when providing disclosure pursuant to the duty of candour.
Background
IAB is an interim judgment arising from judicial review proceedings concerning a challenge to a decision by the Secretary of State for Levelling Up, Housing and Communities (the “Levelling Up Secretary”) to make the Houses in Multiple Occupation (Asylum-Seeker Accommodation) (England) Regulations 2023 (the “Regulations”). Put briefly, if the Regulations come into effect, they will remove premises the Secretary of State for the Home Department (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. This step is being taken in aid of an objective to increase the pool of accommodation available to the Home Secretary for use by asylum claimants, and to reduce the need for him to resort to using hotels for that purpose. The claimants in IAB also challenge what they describe as the Home Secretary’s policy on how he will use the opportunity that the Regulations will provide.
In resisting the claim, the Levelling Up Secretary and the Home Secretary (the “Secretaries of State”) provided disclosure in three tranches. Each of the tranches of disclosure included redacted documents. Disclosure was given without explanation (either generally, or document by document) of why text and passages had been redacted.
In a skeleton argument (filed for the hearing of a renewed application for permission to apply for judicial review as the challenge related to the Levelling Up Secretary), the Secretaries of State explained the basis for some of the redactions, namely that redactions had been applied to the names of “junior civil servants” (by which the Secretaries of State meant any civil servant outside the grades that comprise the ‘Senior Civil Service’ (“SCS”), regardless of age or experience) on the ground of relevance.
It was in this context that Swift J was asked to determine, amongst other things, the following two issues:
- Is it permissible for Secretaries of State, as a matter of routine, to redact the names of civil servants outside the SCS from documents disclosed in judicial review proceedings?
- The procedure that a disclosing party should take when seeking to disclose redacted documents in judicial review proceedings.
Whilst the judgment concerns Secretaries of State (i.e., central government) it is of broader application and is relevant to all defendant public authorities, for example local authorities. Note that the paragraph references below are to references to paragraphs in Swift J’s judgment.
The judgment
Issue 1: Is it permissible for Secretaries of State, as a matter of routine, to redact the names of civil servants outside the SCS from documents disclosed in judicial review proceedings?
The Secretaries of State explained that the names redacted are the names of civil servants who are in Grades 6 or 7, or Executive Officer, or Administrative Officer grades, i.e., the grades below the SCS. It was explained that this approach reflected a general approach that is now being applied, across central government, in all claims for judicial review.
The Secretaries of State submitted that names of civil servants outside the SCS fell outside the duty of candour obligation and could be removed from all disclosable documents on grounds of relevance. Relevance permitted this redaction in all cases save for those in which the identity of a civil servant involved in a decision, or the decision-making process, related to the legality of the decision under challenge.
The Secretaries of State further submitted that, relevance apart, there was good reason to remove names of civil servants outside the SCS from all disclosable documents.
Swift J did not accept any of these submissions.
First, considering the position in general, Swift J held as follows.
- The obligation of candour is an important duty [11]. What is required to discharge the duty of candour, when a public authority chooses to meet that obligation by disclosure of documents, must at the least, be fully informed by the purpose of the candour obligation. Redaction, sentence by sentence or line by line, as a matter of course, runs against the grain of an obligation aimed at ensuring public authorities responding to judicial review claims should explain the reasoning underlying the decision under challenge. A document that has been disclosed in judicial review proceedings ought not, absent good reason, be redacted on grounds of relevance in any way that impairs either the actuality or the appearance of a ‘cards face upwards’ approach [17].
- The logic that drove the Secretaries of State’s submission extended well beyond the redaction of the names of civil servants outside the SCS. It would permit redaction of the name of any and every civil servant, save where the identity of the person went to the legality of the decision, and would permit the removal of any part or word in the text of a document that did not in some way directly concern a ground of challenge. Moreover, the same reasoning would apply for all public authorities before the courts in all judicial review claims. There was no logical distinction between civil servants in central government departments and persons employed by local authorities or by any other decision maker whose powers are derived from public law [16].
- Redaction leads to significant practical difficulties. The present case was an example of a common situation where email exchanges and other contemporaneous documents are disclosed to explain a decision-making process [18].
- The response to these concerns – that any concerns were about no more than “making reading documents a little bit easier” – was “glib” [19].
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- First, ensuring that documents disclosed in litigation to explain a decision-making process are readily intelligible is an objective worth achieving for its own sake. It was notable that the Secretaries of State’s proposal to deal with problems of intelligibility (both in this case, and generally) was to replace redacted names with a list of ciphers; an approach that would be laborious, prone to error, and even when error-free would only add a new layer of complexity to the task of understanding the narrative of the decision-making process from the documents disclosed.
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- Second, an approach to compliance with the obligation of candour that, as a matter of routine, hides detail that aids the court’s understanding of the public authority defendant’s explanation of the decision under challenge, is antithetical to the purpose of the candour obligation.
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- Third, the appearance created by the Secretaries of State’s approach is a matter of genuine concern. Reasonable and well-informed members of the public will readily understand that there are occasions (few in number) when documents disclosed in aid of the fair and just determination of legal disputes must be redacted as some information in the documents is sensitive. Considerations of national security and instances where public interest immunity can be asserted are obvious examples, and there will be others. However, a practice by which information, not sensitive per se, is routinely removed from documents risks undermining confidence that appropriate legal scrutiny is taking place under fair conditions, because it will be apparent that the routine redaction builds in a possibility that the sense or significance of a document may be overlooked.
- Drawing these points together, the principle that ought to guide the approach in judicial review proceedings is that absent good reason to the contrary, 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 sought to protect were 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 [22].
As relevant to the present proceedings:
- Those civil servants outside of the SCS did not enjoy any reasonable expectation of confidentiality. No such expectation would attach to any person as a matter of general employment law. Moreover, when at work civil servants are not involved in anything that can be described as a private activity, they are exercising public functions as part of the public service of the country. Moreover, the distinction between “junior” and “senior” civil servants was akin to the distinction between junior and leading counsel and was not necessarily any indication of age or experience. The class of “junior civil servants” includes civil servants with significant responsibilities [25].
- There was no weight in the submission that the general effectiveness of the civil service depends on civil servants not being associated with the work they undertake in the public interest. Occasionally, professionals do come in for personal abuse. That is very regrettable, and it ought not to happen. However, the two examples in the Secretaries of State evidence do not suggest any widespread problem, and there are no examples in the evidence to suggest that any practical problems have arisen because of the disclosed documents in this case. To the extent that any such general risk might exist there are obvious steps that can be taken that would not have any adverse impact on the quality of disclosed documents. For example, email addresses and phone numbers might be removed from documents before they are disclosed [27].
- Reasonable members of the public well understand that civil servants perform their duties of informing and advising and assisting ministers in the public interest. Ministers are responsible for policy. It is irrational to associate civil servants with, or hold them responsible for, ministerial decisions or decisions made in pursuit of policies set by ministers. The ordinary and proper course of litigation – in this case the treatment of disclosable documents – ought not to be altered for fear of the possibility that some people, likely few in number, either may not, or may choose not to understand. Social media provides the opportunity for all opinions, however wrong-headed, to be broadcast. Sometimes those with the least to say will shout it loudest. That is as it may be. But the general approach to the conduct of litigation cannot be dictated by fear of the baser instincts of a misguided few [28].
Thus, in light of the above, Swift J concluded as follows:
“Overall, therefore, I do not consider there is any sufficient reason either arising from general considerations, or from the circumstances of this case to warrant the redaction from disclosable documents of the names of civil servants outside the Senior Civil Service.” [30]
Swift J therefore ordered the Secretaries of State to re-serve the disclosure with the redactions removed.
Issue 2: The procedure that a disclosing party should take when seeking to disclose redacted documents in judicial review proceedings.
In respect of this issue, Swift J held that:
- 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.
- 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 legal professional privilege 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.
Conclusion
Swift J’s judgment is a useful reminder that litigants in judicial review proceedings are not entitled to redact, on the ground of relevance, the identities of officials in disclosed documents. This is of particular importance to public authority defendants, which are invariably providing disclosure were such considerations might arise. Swift J had previously warned against this approach. Nevertheless, it is helpful to have the required approach restated in detail. Swift J’s findings are of relevance to all defendants and not just central government. Local authorities and other public authority defendants should take note when providing documents pursuant to the duty of candour.
This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email enquiries@sharpepritchard.co.uk.
