The Court of Appeal has confirmed that junior civil servants' names cannot be redacted from disclosure in judicial review proceedings. Doing so without "good and specific reasons" would amount to a breach of the duty of candour. The duty of candour is an obligation to explain the reasoning process underlying the decision under challenge.

In Secretary of State for the Home Department (and ors) v R¹,  the government appealed a decision that the Applicants were entitled to disclosure of documents without redactions of names of civil servants in the grades below the Senior Civil Service. The underlying review related to a decision about accommodation for asylum seekers.

The government argued that junior civil servants have a reasonable expectation of confidentiality. This argument did not find favour with the court, which commented:

• neither the Treasury Solicitor's Department nor Administrative Court Guidance allowed for blanket redaction of civil servants' names;
• in principle, there was no reason to distinguish between any level of civil servant, or decision-makers generally, from anyone else;
• redactions may impact the context, significance and intelligibility of the document;
• redactions of names may be permissible in ordinary civil proceedings, where there is no equivalent to the duty of candour;
• the Ministerial Code requires ministers to be as open as possible with Parliament and the public; and
• if Parliament intends to protect the anonymity of civil servants in judicial review proceedings, it should enact a statute to that effect.

The court considered that replacing names with list of ciphers was an "extremely laborious" and costly process, saying that government employees have "better things to do with their time".

There are limited exceptions for when redactions may be permissible. The court pointed to contact details, parts of a document concerned with a wholly different subject matter and redactions for reasons of national security or where there is evidence of real risk of personal safety.

This decision comes in the wake of Fordham J's exploration of the duty of candour at the permission-stage decision in Police Superintendents v The Police Remuneration Review Body². Fordham J set out 10 principles governing disclosure. One of which, the "Redaction Principle", stated that documents can be redacted for reasons of public interest immunity, confidentiality, legal professional privilege or statutory restriction. The Court of Appeal has now provided some insight into what this principle means in practice: outside certain limited exceptions, public bodies should be slow to apply redactions on the basis of confidentiality.

With thanks to Hayaam Haroon for assisting with this article.

1. [2024] EWCA Civ 66.
2. [2023] EWHC 1838 (Admin).