Grainger v Information Commissioner and the Freedom of Information Act

The Freedom of Information Act 2000 (FOIA 2000) allows any person to make a request to a public authority for information. A public authority is obligated to inform the person making the request whether it holds the information described in the request and if so, communicate that information unless one of the exemptions within the FOIA 2000 applies.

Exemptions Under the Freedom of Information Act

One of the exemptions is under Section 22 of the FOIA 2000, which confirms that information is exempt if:

“(a) the information is held by the public authority with a view to its publication, by the authority or any other person, at some future date (whether determined or not),

(b) the information was already held with a view to such publication at the time when the request for information was made, and

(c) it is reasonable in all the circumstances that the information should be withheld from disclosure until the date referred to in paragraph (a).”

There is a further exemption that relates to the above under Section 22A of the FOIA 2000 and is in relation to research. This confirms that if information is obtained in the course of a programme of research, the information is exempt if:

• the programme is continuing with a view to the publication of a report of the research; and
• to disclose the information before publication would likely prejudice the programme or the interests of any individual involved (including the authority).

Both of the above exemptions are qualified exemptions, meaning that they are subject to the public interest test. The public interest test questions whether the public interest in maintaining the exemption is greater than the interest in disclosing the requested information.

Case Study: Grainger v Information Commissioner and another [2025]

On 13 April 2023, the Appellant requested data from the Medicines and Healthcare Products Regulatory Agency (MHRA) in relation to the active surveillance of 2000 pregnant women and the effect of the Covid-19 vaccine. Within the request, the Appellant asked 9 specific questions in relation to the data.

The MHRA responded and refused the request under Section 22 of the FOIA stating that the requested information was intended for future publication. The Appellant was unhappy with the MHRA’s response and lodged a complaint with the Information Commissioner’s Office (ICO). The ICO agreed with the MHRA’s decision.

The Appellant therefore appealed the ICO’s decision to the First-Tier Tribunal. The Appellant submitted that there was a high public interest in publishing the information without delay and that the MHRA’s delays in reporting the data to date had kept crucial information from pregnant women.

The Tribunal was satisfied that there was an intent to publish the information before the Appellant had made her FOIA request. The Tribunal was also satisfied that there was a real risk of misinformation if the information was published prior to the publication of the full report and that misinformed hysteria about the vaccine could equally put lives at risk.

The Tribunal therefore concluded that it was reasonable in all circumstances for the MHRA to withhold the information until publication. As the Tribunal found that the exemption under Section 22 was engaged, they did not need to go on and consider the exemption under Section 22A. The appeal was dismissed.

Our Comment

A request under the FOIA can be a useful tool to obtain information from public authorities if done correctly. It is however important to keep in mind that it does not give an automatic right to any and all information. There are exemptions that can apply. This case is a useful summary of the exemption under Section 22 of the FOIA and how it can be applied by a public authority.