REDACTION OF DOCUMENTS SHOULD NOT BE ROUTINE: ADMINISTRATIVE COURT DECISION
In FMA & Ors v Secretary of State for the Home Department [2023] EWHC 1579 (Admin) Mr Justice Swift made the point the redaction of documents in judicial review proceedings should not be routine.
THE CASE
The judge was giving judgment in judicial review proceedings. At the conclusion of the case he observed that many of the documents produced by the defendant had been incorrectly redacted.
THE JUDGMENT ON THIS ISSUE
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One further matter needs mention. The Home Secretary’s initial open disclosure included documents redacted to remove the names of the civil servants who had written them, including redaction of the names of the officials who had prepared the March 2022 consideration minute and the January 2023 consideration minute. The redactions were said to be on the ground of “relevance”. Documents were served in that form without the permission of the court. These redactions should not have been made. It is one thing for a document that genuinely deals with different matters, some relevant to the litigation others irrelevant, to be redacted on grounds of relevance. It is another matter entirely for a document that is relevant to be edited to remove information that goes to explain the document’s provenance and context. One example which has recently become common is when emails are redacted to remove details such as the name of the sender, names of recipients, or the names of persons copied into the message. Such information should not be redacted on grounds of relevance. Such redactions, at the least, make the significance of documents more difficult to understand and, in some instances, they may obscure the significance of a document almost completely. If a party wishes to redact such information from disclosable documents, an application to the court should be made and the application should explain the reason for the proposed redaction, and when necessary set out supporting evidence. In this case, the names and job details of the civil servants who had assessed the information relevant to the not conducive to the public good question in the consideration minutes were redacted. That information was not irrelevant and ought not to have been redacted. If, to any extent, a practice is developing by which such information is routinely removed from documents that are disclosable in judicial review proceedings, that practice should cease.