(General Regulatory Chamber)
Information Rights
B e f o r e :
MEMBER M. SAUNDERS
MEMBER J. MURPHY
____________________
GEORGE GREENWOOD |
Appellant |
|
- and - |
||
(1) THE INFORMATION COMMISSIONER (2) THE DEPARTMENT FOR CULTURE, MEDIA AND SPORT |
Respondents |
____________________
For the Appellant: the Appellant represented himself
For the First Respondent: Nicholas Martin, Solicitor
For the Second Respondent: Freedom of Information Team at DCMS
____________________
Crown Copyright ©
Decision: The appeal is allowed.
Substituted Decision Notice: see Confidential Annex provided to the Respondents only
Introduction
The request for information, internal review and responses
"I am sending this request under the Freedom of Information Act.
(a) Please provide a copy of all correspondence (sent and received) between ministers of your department and Philip Davies MP relating to:
a) Gambling regulation
b) Entain, formerly GVC Holdings
Please include emails, texts, WhatsApp messages or messages on equivalent platforms such as Signal, internal work instant messages such as on Slack, Teams or GChat, and a list of and minutes of any calls.
Please also list the titles of attachments to emails or messages within the scope of this request.
(b) Please provide a record of all meetings between ministers of your department and Philip Davies MP concerning or relating to:
a) Gambling regulation or related issues.
b) Entain, formerly GVC Holdings.
Please provide:
- A list of these meetings, including topics.
- A copy of the minutes recorded of these meetings.
- A copy of civil service briefings prepared ahead of these meetings for the minister concerned.
- A list of the titles of any documents considered at these meetings.
I am happy to limit my request to electronically held records.
Please provide information held from 1 June 2020 to date."
The Decision Notice
(a) the exemptions in s.36 were engaged; and
(b) the public interest in avoiding the inhibition of the free and frank provision of advice, and free and frank exchange of views for the purposes of deliberation, outweighed the public interest in openness and transparency.
Appeal to the Tribunal
(a) The reasoning in the Commissioner's decision notice is generic and does not engage with the real and specific concerns about conflicts of interest between members of the APBGG and the gambling sector in relation to ministers.
(b) Many members of the APBGG have received thousands of pounds in hospitality from gambling firms and are amongst their strongest supporters in parliament while some are directly employed by the sector. It is therefore important to see what arguments they are making in private and if they are effectively acting as paid lobbyists for the sector while serving as MPs.
(c) The recent revelations about the Chair of the APBGG are relevant and raise very serious concerns about how the APPG operates. It is a good example of the widespread and ongoing concern about the financial benefits received by members of the APBGG and their role advocating for the industry.
(d) The Tribunal has previously ruled that those acting as lobbyists cannot reasonably expect their comments to remain private (Corderoy v Information Commissioner and Department for Exiting the European Union EA/2019/0109 and 0111)
(e) There is a clear public interest in transparency around what MPs who receive benefits from private companies do to support these companies' interests. Given the ongoing gambling review, and the efforts by the gambling industry to try to water down additional liabilities they may face, there is a very strong public interest in transparency about what is being said in such meetings.
(f) The Commissioner weighed heavily the potential prejudice that officials and third parties might face. However, GG does not dispute the redaction of the names of junior officials which reduces the weight that can be given to these interests in the balancing test.
(g) MPs expect a high degree of scrutiny. MPs in this situation are unlikely to be speaking as experts on a topic but lobbying for an interest from which they have benefitted. As such, the weight must be limited.
(h) The decision notice does not explain why in this case disclosure would be particularly harmful. The lack of specific reasoning must weaken the weight given to these arguments.
Commissioner's response to the appeal
(a) GG does not challenge the engagement of the s.36 FOIA exemptions, but rather the balancing of the public interest.
(b) The Upper Tribunal has noted that in conducting the public interest test, the qualified person's opinion is afforded a measure of respect, adding "No doubt the weight which is given…will reflect the Tribunal's own assessment of the matters to which the opinion relates."
(c) In his decision notice, the Commissioner concluded that the Qualified Person's opinion was reasonable and that the public interests under each exemption favoured maintaining the exemptions.
(d) The Commissioner resists the appeal, "broadly maintains" that the qualified person's opinion is reasonable and that the public interest favours maintaining the exemptions for the reasons set out in the decision notice particularly as, at the time of the request, the gambling review was ongoing and there was a greater need for "a safe space" in such circumstances.
(e) However, on review it is unclear to the Commissioner why the particular information in the correspondence is considered to be exempt by the DCMS compared to other correspondence released in response to the request subject to redaction of personal data. The joinder of DCMS to these proceedings would be of assistance to address this issue.
GG's reply to the Commissioner's response
(a) The only information still outstanding is the minutes of and briefing for a meeting with APBGG about the Gambling Act review.
(b) If DCMS still wishes to resist disclosure, would the Commissioner state whether he intends to defend his decision notice?
The Law
Section 1(1) FOIA: general right of access to information held by public authorities
Any person making a request to a public authority is entitled –
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if this is the case, to have that information communicated to him…
…
Section 2 FOIA: Effect of the exemptions in Part II
…(2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that—
(a)…
(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information…
Section 36 FOIA: Prejudice to effective conduct of public affairs
(1) This section applies to –
(a) information which is held by a government department…
(2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act –
(a) …
(b) would, or would be likely to, inhibit –
(i) the free and frank provision of advice, or
(ii) the free and frank exchange of views for the purposes of deliberation, or
(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.
The role of the Tribunal
s.57 Appeal against notices…
(a) Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice…
s.58 Determination of appeals
(1) If on an appeal under section 57 the Tribunal considers -
(a) that the notice against which the appeal is brought is not in accordance with the law, or
(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,
the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner, and in any other case the Tribunal shall dismiss the appeal.
(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.
Evidence
Submissions
Discussion
Possible unfairness of information being withheld from GG
(a) the Tribunal's expertise, and exercise of an investigatory rather than adversarial function;
(b) the Commissioner being an independent, expert regulator who does not take sides. On the contrary, the Commissioner's role is to point out the strengths and weaknesses of both parties' cases in assessing the correct application of the law and regulations;
(c) informing parties excluded from "closed" information as much as possible with maximum possible candour in the written reasoned decision; and
(d) in this case, the withheld information includes personal data, which GG says he does not seek, and other information about meetings with Ministers which he does seek.
The facts
(a) Some information (comprising various correspondence) was provided in response to GG's request, with personal information having been redacted.
(b) During these proceedings the remainder of the requested information was withheld under GRC Rule 14 and will remain so held as indicated in paragraph 29 above.
(c) GG does not challenge the exemption relating to personal data under s.40(2) FOIA: the only outstanding issue is therefore the withholding of requested information under s.36(2) FOIA.
(d) The QPOs comprise:
i. in the case of the QPO (QPO1) dated 29 April 2022, an email from the Minister's private secretary to DCMS colleagues dated 28 April 2022 which said, "MSTCS [the Minister] agrees to the recommendation to apply the exemption and not release the information"; and
ii. in the case of the QPO (QPO2) dated 6 September 2022, an email from the Minister's Office to DCMS colleagues dated 6 September 2022 which said, "Thanks again for the sub. MSTHCS [the Minister] is content to apply Section 36(2)(c) exemption to the request."
(e) QPO1 was accompanied by an email by DCMS' FOI Team to the Minister dated 18 April 2022 (Submission 1) and QPO2 by a similar email dated 5 September 2022 (Submission 2).
(f) Submission 1 was headed "Section 36 Freedom of Information Act 2000 Submission – Briefing, readout and correspondence with Philip Davies and Gambling entity (GVC)". The introductory paragraph headed "Issue" read "This submission seeks your agreement to apply an exemption to the release of information related to meetings between ministers, Philip Davies, and, a gambling operator, following a request for information under the Freedom of Information (FOI) Act."
(g) Submission 1 set out in full GG's request and included a hyperlink entitled "Briefing of Meetings" (as Annex A) and another hyperlink to "Minutes of meetings" (as Annex B).
(h) Submission 1 contained no further reference to gambling regulation, the Gambling Act Review, gambling operators or possible conflicts of interest on the part of those participating in the meetings. Rather, the briefing asked the Minister to give his reasonable opinion as to whether releasing the briefing for the meetings at Annex A would be likely to inhibit the free and frank exchange of advice, and releasing the minutes of the meetings at Annex B would be likely to inhibit the free and frank exchange of views under s. 36(2)(b)(i) and (ii). The remainder of Submission 1 simply set out the statutory test and cited general public interest factors favouring respectively withholding of the information and its disclosure. Submission 1 included no advice or guidance as to how the Minister should approach the task of giving a "reasonable opinion".
(i) Submission 2 dealt solely with four items of correspondence proposed to be withheld under s.36(2)(c) FOIA. Subsequently, the first two items were withheld as being out of scope of the request – which GG has not challenged – and the second two were disclosed to GG (and are included in the Open Bundle).
Error of law or wrongful exercise of discretion in balancing the public interest
Is there an error of law in the Commissioner's Decision Notice?
Section 36(2)(b) (inhibition of free and frank (i) provision of advice or (ii) exchange of views)
37. The Commissioner's guidance on the s.36 FOIA states that these exemptions depend "crucially on the qualified person's exercise of discretion in reaching their opinion. This means that they must consider the circumstances of the particular case before forming an opinion…The qualified person should consider the facts in each case… If it is not evident how the provision of advice or the exchange of views would be inhibited, it may be harder to…justify that the opinion was a reasonable one…The issue is whether disclosure would [likely] inhibit the processes of providing advice or exchanging views."
Did the Commissioner wrongfully exercise his discretion in balancing the public interest?
In favour of disclosure:
(a) Increased government transparency which renders government more accountable to the electorate and increases trust.
In favour of maintaining the exemptions:
(b) Preservation of a "safe space" in briefing documents so officials feel comfortable sharing candid advice when briefing Ministers. Were officials to fear their advice being released under FOIA, they may fail to alert Ministers to all issues relevant to the discussion and leave Ministers unprepared.
(c) A "chilling effect" may apply to meetings because attendees may not discuss matters candidly due to concerns that their views and opinions would be disclosed under FOIA. As a result, they may be reluctant to contribute to meetings or may withhold sensitive but important information.
(a) raises issues about "safe space" and "chilling effect" which in the panel's view (see paragraphs 47 and 48 above) carry limited weight in all the circumstances of this case;
(b) may reveal some sensitive – but not, in the panel's view, exempt – information, for example about differing views on gambling regulation and possible options being considered by the DCMS as part of the Gambling Act Review; and
(c) might expose views expressed by some APBGG members when those views are not necessarily shared by their constituents or fellow Parliamentarians.
Summary of decision
(a) the panel does not accept that QOP1 is a "reasonable" opinion, and therefore concludes that the s.36(2) FOIA exemptions claimed by DCMS and confirmed by the Commissioner are not engaged; and
(b) even if the panel is wrong about this, bearing in mind the nature of the information withheld, the panel concludes that the public interest arguments for disclosing the withheld information outweigh the public interest submissions for maintaining the exemptions in s.36(2)(b)(i) and (ii).
Conclusion
Signed:
Alexandra Marks CBE
(sitting as a First-tier Tribunal Judge)
Date: 25 September 2024