Chapter 9 - Research and Experimentation

The use of animals in research and experimentation is an established feature of human society. As Alex Bruce points out, in 2006 there was an increase of 23% in the use of animals in research and experimentation in Australia. Research involving animals must be screened and approved by animal ethics committees in accordance with the National Health and Medical Research Council’s Australian Code of Practice for the Care and Use of Animals for Scientific Purposes (2013). The research needs to be justified and adhere to principles of replacement, reduction and refinement. Justification for projects is based on utilitarian criteria that inevitably consider how the research can proceed rather than whether it should proceed. Consequently, notwithstanding the oversight of animal ethics committees, the use of animals in research and experimentation still raises many moral and ethical dilemmas.

Moreover, as illustrated by the case in this Chapter, animal advocates will not find it easy to gain access to records and materials, indicating that arguably the system lacks sufficient transparency.

9.1 United Kingdom Secretary of State for the Home Department v British Union for the Abolition of Vivisection and another [2008] EWCA Civ 870

Prepared by Jennifer Hird

Court

England and Wales Court of Appeal

Facts

In December 2004, The British Union for the Abolition of Vivisection (‘BUAV’), the respondent, made an application under the Freedom of Information Act 2000 (UK) (‘FOI Act’)to gain information from the Home Office pertaining to the licensing of animal research. The BUAV requested “the actual information” contained in each of the following licences: “wound healing; relief from chronic pain by use of antidepressants; studies involving disorders of balance; metabolism and excretion studies for new drugs; and genetically modified animals & respiratory diseases.”

In March 2005, the head of the Animal Scientific Procedures Division at the Home Office responded to this request by providing a narrative document containing all information that he deemed appropriate to disclose. Information regarded as confidential was omitted, in accordance with the statutory exemptions relevant to disclosure.

The BUAV responded to the selective disclosure by arguing that some categories of material deemed to be confidential, should not be. These categories were: “permissible purpose; duration of project; background; objectives & potential benefits; justification for use of primates, cats, dogs or equidae; description of work; index of procedures; and housing conditions and environmental enrichment.”

The Secretary of State denied BUAV’s request for further information. This decision was upheld by the Information Commissioner. A further appeal to the Information Tribunal was allowed; it was held that the information had to be entitled to protection under the law of confidence, which required the person receiving it to have a legally enforceable obligation to keep it confidential. The BUAV lodged an appeal to the Queen’s Bench Division of the High Court of England and Wales. This appeal was allowed by Eady J. The BUAV appealed to the Court of Appeal.

Issues

• Whether the Information Tribunal was correct to read s 24 of the Animals (Scientific Procedures) Act 1986 (UK) as importing the three part test from Coco v AN Clark (Engineers) Ltd [1969] RPC 41 (‘Coco’)

Decision and Reasons for the Decision

Carnwath LJ delivered the judgement, dismissing the appeal and affirming the decision of Eady J and the Information Commissioner.

The BUAV submitted that s 24 of ASP Act only applied to information given in confidence to the Home Office. The BUAV further drew the Court’s attention to the decision of Coco, which held that the following questions needed to be answered in the affirmative before information could be deemed to be given in confidence:

(a) Does the information in question have the necessary quality of confidence? (b) If so, was it disclosed in circumstances that gave rise to an obligation to maintain its confidentiality? (c) Would its disclosure in breach of that obligation cause harm to the person who made the original, confidential disclosure?

The BUAV submitted that the categories of material excluded by the Home Office did not meet this test, and that the information was not therefore not prohibited from being disclosed by s 24 of the ASP Act.

The Court held that the relevant test was a subjective one, “directed at the state of mind of the official or other person in possession of the information”. The question to be answered was “does he or she know or have reasonable grounds for believing that the information was ‘given in confidence’”? The Court also needed to determine whether at the time of giving the information, the giver expressly or by reasonable inference from the circumstances, intended that the information be held “in confidence”.

His Honour also stated that there was nothing within the relevant legislation to indicate that the Court should import an objective test derived from the law of confidentiality. The Court identified that the Coco tests were created to “hold a fair balance between competing commercial interests” in absence of contractual agreement and that there was no equivalent balance of competing interests in s 24 of the ASP Act. It was observed that the section was “concerned with the relations of citizen and state”. The aim of the statute was to regulate and protect the provision of confidential information. Importantly, there was nothing in the ASP Act to “justify limiting the scope of the protection by reference to any more general interest in public information, such as was later given effect by FOI Act”.

The Court dismissed BUAV’s submission that standard procedures could not be confidential.

Finally, the Court observed that the effect of s 24 of the ASP Act was to induce “[a]n official wishing to use that information for some other purpose… to lean on the side of caution, in order to avoid criminal sanctions”. It also indicated that “a test based simply on ‘confidentiality’ may not adequately reflect the developments in the modern law, including the law of human rights”; however, it stated that this was not directly relevant to the matter at hand.

The BUAV petitioned to The Appeal Committee of the House of Lords to be granted leave to appeal. This petition was dismissed.

Significance of the Case

This case affirmed that a subjective test was to be applied in respect of s 24 of the ASP Act. Such a test increases the difficulty animal protection groups face when seeking access to information regarding animal experimentation, as it triggers the application of the prohibition where an “individual know[s] or ha[s] reasonable grounds for believing that the information was ‘given in confidence’”.